State v. Deschamps

The opinion of the Court was delivered by Mr. Justice Watts. “This case was tried before his Honor, Judge J. W. De-Vore, and a jury on the 9th day of October, 1922. The defendant was indicted for malicious mischief, the specific charge being that he injured the land of one Paul B. Hodge by throwing the live nuts of nut grass thereon. The de *180 fendant was found guilty by the jury, but upon motion his Honor, Judge DeVore, granted a new trial, from which the State appealed. Upon appeal (126 S. C., 416; 120 S. E., 491) the Supreme Court held the trial Judge in error in ordering a new trial, and remanded the case for sentence. Pending the imposition of the judgment and sentence of the Court, the defendant moved for a new trial before his Honor, Judge John S. Wilson, upon affidavits set out herein, which was refused. The defendant served the following notice of appeal.” The exceptions are two in number. The first exception alleges error on the part of his Honor, Judge DeVore, in his charge to the jury. This exception is without merit under the cases of State v. Bundy, 24 S. C., 439; 58 Am. Rep., 263. State v. Nance, 25 S. C., 168. State v. Welsh, 29 S. C., 4; 6 S. E., 894. State v. Jackson, 36 S. C., 487; 15 S. E., 559; 31 Am. St. Rep., 890; and State v. Anderson, 59 S. C., 229; 37 S. E., 820. The second exception complains that his Honor, Judge Wilson, was in error in not granting a new trial as asked for by the defendant. This was in a large measure addressed to the discretion of his Honor, and it is certainly not made to appear that he abused his discretion. The evidence is not new evidence, but cumulative, and could not have changed the result of the trial because the affidavits submitted were either contradicted by the other affidavits from the same parties or the affidavits were cumulative and similar to much other evidence of like nature given by the witnesses in the trial of the cause. All exceptions are overruled, and judgment affirmed. Mr. Justice Coti-iran and Messrs. Acting Associate Justices R. O. Purdy and C. J. Ramage concur. Mr. Chiee Justice Gary did not participate.