Opinion
19712
October 30, 1973.
Messrs. Harrelson Gregory, of Walterboro, for Appellant, cite: As to the Lower Court's erring in failing to grant a continuance or in failing to admit the sworn statement of an alleged eyewitness, when the Sheriff advised that a crucial eyewitness for the defense had not been found, when defense was under the honest mistake of fact that said witness was in the sequestered room, subpoenas having been given the Sheriff before trial commenced: Rule 27 of South Carolina's Circuit Court rules; 22A C.J.S., Sec. 486, pp. 109-110; 113 S.C. 91, 101 S.E. 282; 22A C.J.S. 488 (2) p. 116, f., n. 94, Sec. 95; 22A C.J.S. 507; 78 S.C. 264, 58 S.E. 815; 200 S.C. 188, 20 S.E.2d 726; 206 S.C. 409, 24 S.E.2d 764; 209 S.C. 151, 39 S.E.2d 222; 230 S.C. 222, 15 S.E.2d 255; 120 S.C. 239, 113 S.E. 77. As to the Court's erring in refusing to admit the medical records of deceased from the South Carolina State Hospital: 29 S.C. 34, 42, 6 S.E. 891; 107 S.C. 411, 93 S.E. 124; 12 Rich. 430; 129 S.C. 166, 123 S.E. 817; 241 S.C. 231, 128 S.E.2d 98; 256 S.C. 420, 182 S.E.2d 738. As to the Court's erring in not granting a directed verdict for the Defendant or a judgment not withstanding the verdict, or in arrest of judgment or in not granting a motion for a new trial in that the evidence for the state was filled with conflicts and contradictions and was insufficient, as a matter of law to sustain the verdict: 250 S.C. 451, 158 S.E.2d 769; 117 S.C. 470, at 473, 109 S.E. 119.
Randolph Murdaugh, Jr., Esq., Sol., of Hampton, for Respondent, cites: As to the Trial Court's properly refusing to grant a continuance to the Defendant during the second day of trial and after the State had presented its case where it was shown that the Sheriff had prior to trial been unable to procure the attendance of a witness: 230 S.C. 405, 95 S.E.2d 857; 255 S.C. 548, 180 S.E.2d 179; 38 S.C. 333, 17 S.E. 39; 66 S.C. 449, 45 S.E. 13; 22 A.C.J.S., Criminal Law, Section 486; Circuit Court Rule No. 27; 184 S.C. 290, 192, S.E. 365. As to the Court's not being in error in refusing to admit the medical records of the deceased from the State Hospital when the attending psychiatrist was deceased and the other examining psychiatrist was not present: 7 S.C. 410; 104 S.C. 332, 88 S.E. 896; 241 S.C. 231, 128 S.E.2d 98, 105; 32 C.J.S., Evidence, Sec. 728; 31 A.C.J.S., Evidence, Sec. 194; 217 S.C. 489, 61 S.E.2d 53; 256 S.C. 420, 182 S.E.2d 738; 126 S.C. 1, 119 S.E. 776; 29 S.C. 34, 6 S.E. 891; Law of Evidence, McCormick, Sec. 270, Annotation at 1 A.L.R. 3d 571; Annotation at 87 A.L.R.2d 968. As to the Court's not being in error in not granting a directed verdict for the Defendant or a judgment not withstanding the verdict, or in arrest of judgment or in not granting a motion for a new trial on the ground that the evidence for the State was filled with conflicts and contradictions and was insufficient, as a matter of law to sustain the verdict: 178 S.E.2d 518, 523; 255 S.C. 86, 177 S.E.2d 464.
October 30, 1973.
The defendant appeals from his conviction of manslaughter and sentence to imprisonment for a term of fifteen years.
Three specifications of error are argued. The first assigns as error the refusal of the court to grant a continuance because of the absence of a defense witness. This motion, which was addressed to the sound discretion of the trial judge, was not made until after the State had closed its case and the three defense witnesses had been examined. We find no error, certainly no abuse of discretion, in the court's ruling that the motion came too late to receive favorable consideration.
The second specification assigns as error the court's refusal to admit into evidence the records of the South Carolina State Hospital concerning a 1968 admission and treatment of the victim of the 1971 homicide. These records were identified by the assistant registrar of the hospital, who brought them into court in response to defendant's subpoena. While objecting to the records generally, the State consented that the diagnosis at the time of the patient's discharge, i. e., "emotionally unstable personality," be read to the jury. When the court inquired whether anything else was desired, counsel for defendant replied, "I presume that is all I can get into it." No other offer of proof was made, and there is nothing to show prejudice to the defendant even if the records were erroneously excluded, which we do not concede.
The final assignment of error is based upon the claimed insufficiency of the evidence to sustain the verdict and is manifestly without merit.
The defendant has also moved under Rule 24 that this appeal be suspended to allow him to move in the circuit court for a new trial on the ground of after-discovered evidence. We are satisfied that defendant has failed to establish prima facie entitlement to such relief, as is required. 3 West's South Carolina Digest, Appeal and Error, Key No. 819 (1952); State v. Jennings, 40 S.C. 553, 18 S.E. 932 (1894). Therefore, his petition to suspend the appeal is denied.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.