June 4, 1908.
Motion in this Court by Gus Lee to suspend appeal from order of Judge Gage refusing motion at chambers for new trial on after-discovered evidence, and for leave to make motion below for new trial on same ground. The case was tried in this Court at November Term, 1907, and opinion filed February 7, 1908, 79 S.C. 223, 60 S.E., 524. The motion appealed from was made on circuit at chambers after remittitur filed below. The motion was made first in this Court on the 28th day of May, 1908, and on the 2d day of June, 1908, was ordered to be argued before the Court en banc on June 4, 1908.
Mr. W.H. Newbold, for the motion.
Solicitor J.K. Henry, contra.
The Court en banc was composed of the Chief Justice, the three Associate Justices and the following Circuit Judges: Aldrich, Watts, Gary, Hydrick, Klugh, Memminger and DeVore.
June 4, 1908.
This is a motion to suspend an appeal from an order of Judge Gage at chambers, refusing defendant's motion for a new trial on the ground of after-discovered evidence for the purpose of allowing a motion before the Circuit Court for a new trial on after-discovered evidence. This Court is of the opinion that it is without jurisdiction to entertain this motion, and it is therefore refused.
In reaching this conclusion the Court overrules the doctrine announced in the case of State v. Turner, 39 S.C. 436, 17 S.E., 885, and cases following the same, and is now of the opinion that the Circuit Court alone has jurisdiction to entertain such a motion. No doubt the execution of the sentence imposed upon the defendant will be respited by the proper authority until an opportunity is allowed him to make this motion in the proper court.
CIRCUIT JUDGES GARY and WATTS concur in this order only to the extent of refusing the motion.