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The Opinion of the Court was delivered by
Mr. Associate Justice Stukes :
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The facts relating to this appeal are sufficiently stated in the order of the Honorable E. D. Eide, presiding Judge, dated at Allendale on April 16, 1940, which will be reported, so it is unnecessary to repeat them.
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The granting or refusal of a motion for a new trial made upon the ground of after-discovered evidence is largely within the sound discretion of the Circuit Judge and his decision thereon will not be disturbed in the absence of a showing of abuse of discretion, amounting to manifest error of law. See the South Carolina cases in West’s South Eastern Digest and supplements, Volume 3, Appeal and Error, 981, and Volume 26, New Trial, 99.
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The contents of the Circuit order evidence the painstaking care with which the learned Judge considered the motion and supporting papers. Dike him, this Court has reviewed the Transcript of Record in the former appeal and the proceedings upon the motion; and despite the earnest argument of appellants’ present able counsel we find no error.
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The exceptions are overruled and the judgment affirmed.
Mr. Chief Justice Bonham, Messrs. Associate Justices Baker and FishburnE, and Circuit Judge G. Dewey Oxner, Acting Associate Justice, concur.
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Case posture Posture Before L.D. LIDE, J., Colleton County, April, 1940. Affirmed.Calhoun Strickland was convicted of simple assault, and W.W. Strickland for pointing firearms, to wit, a gun, at Hattie Lou Chassereau. From an order denying their motions for new trial on the ground of after-discovered evidence, they appeal.
The order of Circuit Judge L.D. Lide, required to be reported, follows:
The defendants above named were indicted by the grand jury of Colleton County for assault and battery with intent to kill one Hattie Lou Chassereau. The defendant, W. W. Strickland, was also indicted for pointing firearms, to wit, a gun, at Hattie Lou Chassereau, and he was also indicted for pointing firearms, to wit, a gun, at H.L. Chassereau, the husband of Mrs. Hattie Lou Chassereau. By agreement these three cases were tried together at the April, 1939, term of the Court of General Sessions for Colleton County before Honorable M.M. Mann, presiding Judge, and a jury; and the defendant Calhoun Strickland was found guilty of simple assault and the defendant W.W. Strickland was found guilty of pointing firearms, to wit, a gun, at Mrs. Hattie Lou Chassereau. Calhoun Strickland was sentenced to thirty days on the Colleton County chaingang, and W.W. Strickland was sentenced to serve one year in the State penitentiary. The defendants appealed to the Supreme Court, but after the Transcript of Record was printed the appeal was withdrawn and dismissed. Thereafter, to wit, on or about February 1, 1940, the defendants through George Warren, Esq., as their attorney, gave notice of a motion for a new trial on after-discovered evidence. It should be stated here that Mr. Warren did not represent the defendants at the trial of the case and was not retained by them until after the appeal was dismissed.
The motion for a new trial on after-discovered evidence was heard before me while I was presiding over the Court of General Sessions at Allendale on April 15, 1940, and
after very earnest and able arguments of counsel was taken under advisement.
The motion is based on six affidavits, and the alleged after-discovered evidence consists solely of statements said to have been made by the prosecuting witness H.L. Chassereau either before or after the difficulty between him and the defendants. And there is an affidavit by the defendant W.W. Strickland to the effect that he and his son the defendant Calhoun Strickland used due diligence with reference to this testimony.
The Transcript of Record prepared for the appeal in this case contains a complete stenographic report of the testimony taken at the trial, and I have read and considered the same very carefully in connection with the affidavits presented to me on the hearing of the motion; and my conclusion is that in the exercise of that discretion required of me by law it would be my duty to overrule and refuse the motion.
In the somewhat recent case of State v. Jones , 185 S.C. 274 , 194 S.E., 11 , 12 , the Supreme Court clearly states the standard by which a motion of this kind should be determined, quoting with approval the rule as laid down in 20 R.C.L., 290, as follows: In order to warrant the granting of a new trial on the ground of after-discovered evidence it must appear, (1) That the evidence is such as will probably change the result if a new trial is granted. (2) That it has been discovered since the trial. (3) That it could not have been discovered before the trial by the exercise of due diligence. (4) That it is material to the issue. (5) That it is not merely cumulative or impeaching.
The last requirement, to wit, that the after-discovered evidence must not be merely cumulative or impeaching is recognized and followed in many cases. And in the case of State v. Pittman , 137 S.C. 75 , 134 S.E., 514 , 518 , it is stated that the well-established general rule is that newly discovered evidence which merely impeaches or contradicts
the testimony of a witness at the trial affords no sufficient grounds for a new trial.
Three of the affidavits relied on by the defendants here aver that the prosecuting witness, H.L. Chassereau, made certain statements to the affiants, and it is contended that these statements tend to contradict the testimony given by him at the trial; but reading these affidavits in the light of the testimony at the trial I do not think that they measure up to the requirement of materiality; nor do I think that such evidence would be at all likely to change the result if a new trial were granted.
Counsel for defendants, however, urges that the old case of Durant v. Philpot , 16 S.C. 116 , is controlling here, because in that case the Court held that there is no rule in this State that prevents the granting of a new trial on after-discovered evidence, the effect of which would be to impeach or contradict a witness examined at a former hearing. But I do not think this case can be construed to impugn the general rule above stated, laid down in many recent decisions; although it is recognized that there may be exceptional cases warranting a new trial on merely cumulative or impeaching testimony; for in the Durant case the Court held that the newly discovered evidence was in writing and was so directly applicable to the main point involved that it would be a denial of justice to refuse the motion. And in the case of State v. Tripp , 133 S.C. 294 , 130 S.E., 888 , it was held that the Court was in error in not considering affidavits of witnesses tending to impeach the principal witness for the prosecution. But giving full consideration to the affidavits before me, I think the general rule is clearly applicable here, and that to allow a new trial upon a showing of this kind would be in conflict with the opinion of the Court in the case of State v. Workman , 38 S.C. 550 , 16 S.E., 770 , where it was held that the allowance of a new trial on the contradictory statements there alleged would open the door to fraud
and perjury, and cause interminable delays in the trial of causes.
The other three affidavits upon which the motion for 3, 4 a new trial is sought all aver certain statements alleged to have been made by the prosecuting witness, H.L. Chassereau, in the nature of threats against the defendants which do not appear to have been communicated to them. In reply to these affidavits Mr. Chassereau filed an affidavit specifically denying the making of the alleged statements, and as to two of the affiants he says that he had no conversation with either of them concerning this matter prior to the difficulty. In the case of State v. Jones , 89 S.C. 41 , 71 S.E., 291 , Ann. Cas., 1912-D, 1298, it was held that in motions for new trials on after-discovered evidence, the opposing party may introduce counter affidavits.
I have carefully considered all the affidavits before me, and reading them in connection with the testimony taken at the trial, I am fully convinced that there is no probability that such evidence would change the result if a new trial were granted, and this in itself would be a sufficient reason for the refusal of the motion, aside from what has already been said. And it should also be stated that the difficulty out of which these indictments arose occurred on August 4, 1938; the cases were tried in April, 1939; and the motion for a new trial was made on or about February 1, 1940. It, therefore, seems apparent that the requirement of due diligence has not been complied with, and that the matter comes squarely within the principles stated by the Court in the case of State v. Augustine , 131 S.C. 21 , 126 S.E., 759 . It is, therefore,
Ordered, that the motion for a new trial be, and the same is hereby, overruled and refused. Source: CourtListener
