June 27, 1935. The opinion of the Court was delivered by The appellant, R.D. Kennedy, was tried at a special term of the Court of General Sessions for Bamberg County in November, 1934, upon an indictment charging him with the murder of John H. Clark. He was convicted of manslaughter, and was sentenced to serve ten years in the State penitentiary or a like period upon the public works of Bamberg County.
The homicide occurred in the Town of Denmark, in Bamberg County, on July 4, 1933. At the coroner's inquest, which was promptly held following the homicide, S.G. Mayfield, Esquire, appeared as counsel for the appellant, and thereafter, on July 10, 1933, Mr. Mayfield, upon notice *Page 197 to the State, attempted unsuccessfully to obtain bail for his client before his Honor, Judge H.F. Rice, resident Circuit Judge. Later Messrs. Brown Bush and J.E. Steadman, Esquire, together with Mr. Mayfield, appeared as counsel for the defendant at the next term of the Court of General Sessions for Bamberg County, convening on the third Monday in September, 1933.
At this term a true bill was returned upon the indictment charging the appellant with the murder of J.H. Clark. The case was called for trial by the solicitor, and continued on motion of the defense.
On October 12, 1933, the motion for bail was renewed before his Honor, Judge Grimball, by Mr. Brown, Mr. Mayfield, and Mr. Steadman, and at this hearing Judge Grimball allowed bail.
At the February term of the Court, 1934, the case was continued on motion of the defendant, Mr. Brown making the motion, but the other counsel herein mentioned also appearing for the defendant.
Prior to the next term of the Court and about two months prior to the trial Mr. Steadman having removed from the State to accept employment with the government in Washington, the firm of Kearse Kearse, of Bamberg, was added to the defense counsel, and at the following regular term, September, 1934, the case was continued by mutual consent because of the indisposition of the solicitor.
On Monday, November 5, 1934, at a special term of the Court, the State called this case for trial, whereupon the defense moved for a continuance upon the ground that Mr. Brown, chief counsel, was necessarily detained at his home on account of illness. However, Mr. Mayfield and the firm of Kearse Kearse of defense counsel were present appearing for the appellant. At this stage of the matter, his Honor, Juge Shipp, the presiding Judge, stated that he would postpone the calling of the case until 3 o'clock p. m. Tuesday afternoon, November 6th. When this hour arrived, *Page 198 the solicitor again pressed for trial, and the motion for continuance was renewed, and refused. The case accordingly proceeded to trial, with Mr. Mayfield, appellant's original attorney, and the firm of Kearse Kearse appearing for and actually representing the appellant.
The motion for continuance was based solely upon a letter from Mr. Brown to Judge Shipp under date November 6, 1934, and a certificate from Mr. Brown's attending physician to the effect that it was utterly impossible for Mr. Brown, on account of his illness, to attend the trial.
The letter sets out in considerable detail Mr. Brown's connection with the case as chief counsel for the defendant, and his special knowledge of its details and complexities; he having conferred when other counsel were not present with many of the numerous witnesses the defendant expected to use. The letter also stated that there were some features of the case that no one was familiar with except Mr. Brown.
Judge Shipp had this to say in overruling the motion for a continuance:
"I regret very much that Mr. Brown cannot be here. He has written me a lengthy letter, and has gone into details about it, but this case is of long standing and has been continued once by the defense, and at the last term of Court the solicitor was not able to try the case because of illness. However, I have seen Mr. Mayfield in a number of important criminal cases, and I know that he is thoroughly able to take care of the interests of the defendant here. I have seen Mr. Kearse try a number of cases, and he can take care of himself, and only yesterday he tried a case here.
"Where a man has a number of lawyers and one happens to get sick the other lawyers can carry it on, I think. There is a large number of witnesses here from a distance, and as much as I regret it I don't think I can grant a continuance. There is ample legal assistance here."
The exceptions of the appellant raise only one question for us to pass upon, and that is, Did the Circuit Judge err, *Page 199 under the circumstances related, in refusing to grant the motion for a continuance, and was such refusal an abuse of his judicial discretion?
The authorities in this State are adverse to the position of appellant, and sustain the Circuit Judge.
As declared by this Court in State v. Crosby, 160 S.C. 301,158 S.E., 685, matters of continuance must be left to the sound discretion of the Court, and unless it clearly appears from the record that there was an abuse of discretion, this Court will sustain the action of the trial Judge.
The syllabus in the case of State v. Rabens, 79 S.C. 542,60 S.E., 442, 1110, which correctly states the holding of the Court, is as follows: "Refusal to continue a case beyond the term under facts here on ground that defendant and his counsel had not had time to properly prepare the defense and on supposition that case would not be tried until next term, also refusal to continue case until next day on account of fatigue of counsel in traveling a long distance, defendant having other able counsel in Court, and Court having no other business, held not an abuse of discretion."
The appeal in the case of State v. Edwards, 86 S.C. 215,68 S.E., 524, 525, presented a far graver issue than is present in this appeal. In that case the defendant was tried and convicted of murder without recommendation to mercy, and sentenced to be hanged. The sole ground of appeal imputed error to the presiding Judge in his refusal to grant a motion for continuance, and in proceeding with the trial. In his order settling the case, the presiding Judge stated his reasons for refusing the motion as follows:
"`The defendant was arraigned at the previous term of the Court held by the Honorable R.C. Watts. For reasons satisfactory to him, a continuance at that term of the Court was granted. During the progress of the November term this case was called, after having been reached on the calendar, and the solicitor announced promptly that the State was *Page 200 ready and insisted upon a trial. The docket showed that Mr. Edwards and Mr. Davis were noted as counsel for the defendant, not only at the November term, but were so noted at the previous term. After the announcement made by the solicitor, Mr. Edwards appearing for the defendant, made a motion for the continuance, basing said motion, in part, upon the inclosed certificate and on the further grounds that Mr. Edwards did not feel fully warranted to proceed with the trial. It appeared to me that Mr. Edwards, being a lawyer of experience, was fully capable of managing the defendant's case, and I therefore held that the motion based on this certificate (the same being so very indefinite) was insufficient, and ordered the case to proceed to trial. The case was regularly tried, ably represented by Mr. Edwards, and the result is as appears in the case.'
"The physician's certificate, dated November 1, 1909, was in these words: `I hereby certify that Mr. G.B. Davis of the Berkeley bar is physically unable to attend Court at this term or to attend to business, either legal or otherwise, at present. (Signed) H.S. Feagin, M.D.'"
The Court held that there was no abuse of discretion, and affirmed the order of the Circuit Court.
The case of Cutter v. Mallard Lumber Co., 99 S.C. 231,83 S.E., 595, 597, is directly in point, and concludes the issue here. In that case the appeal to this Court was from an order refusing a motion made by the defense for a continuance, such motion being as follows: "`The first ground of the motion for a new trial is that the Court should have continued the case upon the showing made that Capt. Kelley was engaged in the suit, and that the case should have been continued beyond this Court when Capt. Kelley was taken seriously ill during the term of the Court, and it further appeared that he advised with and was in charge of the case, and that I myself could not go along without his assistance, co-operation, and advice.' It being respectfully submitted that his Honor, the presiding Judge, should have granted a *Page 201 new trial when it was made to appear to him that the case had been commenced recently; that defendant's senior counsel, who was in thorough touch with the case and who was expected to have charge of the conduct of the trial, had suddenly taken seriously ill and was unable to attend the trial; that defendant's other attorney was gravely embarrassed and labored under serious disadvantage in the trial of the case on account of the absence of said senior counsel, which operated to the injury of the defendant and to the detriment of its case."
In the trial the defendant was represented by associate counsel of conspicuous ability, as in the case here, fully capable of representing it, and it was upon this ground that the Court held that the Circuit Judge did not erroneously exercise his discretion in refusing the motion for a continuance.
It was held in the case of Crouch v. Cudd, 158 S.C. 1,155 S.E., 136, 138: "The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the Court to which the application is made, and that its ruling in reference thereto will not be disturbed by an appellate tribunal unless an abuse of discretion is shown. This is because the lower Court is apprised of the circumstances of the case and the previous proceedings, and is therefore in a better position to decide on the propriety of granting the application than the appellate Court.' 6 R.C.L., 544. See, also, Carolina Timber Co. v. Holden, 90 S.C. 470,73 S.E., 869; State v. Kenny, 77 S.C. [236], 240, 57 S.E., 859."
We must hold here, after a most careful examination of this record, that there was no abuse of discretion on the part of the trial Judge in refusing the continuance asked for.
The appellant was represented by associate counsel, capable, zealous, and experienced, and we cannot conclude from the record that he suffered any prejudice. *Page 202
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate in the decision in this case.
ON PETITION FOR AN ORDER STAYING REMITTITUR AND ALLOWING MOTION FOR NEW TRIAL. August 5, 1935.