Opinion
10650
June 30, 1921.
Before SEASE, J., Spartanburg, July, 1920, and McIVER, J., Spartanburg, April, 1921. Reversed.
Dwynell Casey indicted for the murder of Guy Whitmore and upon conviction with recommendation to mercy appeals; and also from order of Judge McIver refusing a motion for new trial on after discovered evidence.
Messrs. Nicholls Wyche and Bomar, Obsorne Brown, for appellant, cite: Requisites in motion for new trial on ground of after-discovered evidence: 20 R.C.L. 290.
Mr. I.C. Blackwood, Solicitor, for respondent. Oral argument.
June 30, 1921. The opinion of the Court was delivered by
The defendant was indicted, tried and convicted of murder with recommendation to mercy at the April term of Court for Spartanburg County, 1920, before Judge Sease and a jury, and sentenced to life imprisonment. The defendant-appellant thereafter made a motion before Presiding Judge McIver for a new trial on after-discovered testimony, which motion was overruled. From this order and from the judgment and sentence appellant appeals. The exceptions question the correctness of Judge Sease's charge and the order of Judge McIver.
By the order of Judge McIver he finds:
"That the defendant and his counsel used due diligence, that they did not at the former trial have notice of the testimony now desired to be offered, and that the testimony is material. I am, however, of the opinion that the evidence submitted is largely cumulative, and would not probably have changed the verdict of the former trial, and for this reason it is ordered that the motion for a new trial be, and the same is hereby, overruled."
In view of the facts developed at the trial before Judge Sease and the nature and character of the new testimony, it is more than merely cumulative. It is material to the issue. It shows the mental attitude of the deceased, and substantiates and corroborates the defendant and his witnesses as to whether deceased was armed or not at the time he was on the premises of the defendant when the killing occurred.
It is of vital importance in the case, and might have vitally affected the jury in the consideration of the case, if it had been presented for their consideration at the trial. It might have influenced and probably might have changed their view, taking into consideration other facts and circumstances. As to whether or not deceased made threats while on his way to defendant's home, and whether or not he then had a pistol on his person, is evidence now of newly developed facts, and not merely cumulative, as held by his Honor, and, even if merely cumulative, might have changed the result if submitted to the jury.
His Honor was in error in not granting a new trial.
The exceptions from the trial before Judge Sease are not considered. The exceptions from the order of Judge McIver refusing a new trial are sustained, and his order reversed, and new trial granted.
New trial.
MR. JUSTICE COTHRAN, disqualified, having been of counsel in the case.