April 3, 1923. The opinion of the Court was delivered by There are five exceptions which we will proceed to consider in their regular order.
FIRST EXCEPTION The reason stated by his Honor the Circuit Judge for refusing to hear the evidence mentioned in this exception, was that it was not newly discovered, but could have been presented at the time of the trial. The reason which he assigned is satisfactory to this Court.
It is only necessary to refer to the testimony of Edmund D. Bigham, the defendant, which we have italicized, to show that this exception cannot be sustained.
THIRD EXCEPTION The findings of fact by his Honor the Circuit Judge are not reviewable by this Court. Therefore the question whether his finding that the unaddressed and undated paper alleged to have been signed by L.S. Bigham was contrary to the overwhelming weight of the testimony presented to him is not properly before this Court for consideration, except in so far as it may tend to show that his discretion was erroneously exercised. The appellant's attorneys have failed to satisfy this Court that the discretion of the presiding Judge was erroneously exercised; therefore this exception must be overruled.
FOURTH EXCEPTION For the reasons already stated, this exception cannot be sustained. *Page 448
FIFTH EXCEPTION What has been said in considering the other exceptions is conclusive of this exception. In conclusion, we shall call attention to a few leading facts that point strongly to the guilt of the defendant.
The question whether the discretion of his Honor the Circuit Judge was erroneously exercised must be determined, not only under the testimony heard upon the motion for a new trial on the ground of after-discovered evidence, but, likewise, upon the testimony introduced at the trial for murder.
The testimony fails to show that any one except Edmund D. Bigham had a motive for the murder of the whole family.
The testimony tends to show that many of the physical facts alleged in the letters were untrue.
It is unreasonable to suppose that L.S. Bigham would have made the unaddressed and undated paper, alleged to have been signed by him, if he had intended to kill the whole family; or that he would have secreted it in such a manner as, in all probability, would prevent its discovery.
The letters and the paper containing the threat to murder the whole family have, in many respects, the earmarks of fabrications.
It is the judgment of this Court that the appeal be dismissed, and the case remanded to the Circuit Court, for the purpose of having a new day assigned for carrying into execution the sentence of the Court imposed on the defendant.
MESSRS. JUSTICES FRASER and MARION concur.
MR. JUSTICE COTHRAN dissents.
MR. JUSTICE WATTS did not sit.
MR. CHIEF JUSTICE GARY: I cannot but think that the evidence relied upon was of vital import; that, if true, the result might have been different; and that the defendant *Page 449 was entitled to have the issue of its truth passed upon by a jury.
MR. JUSTICE MARION: The defendant stands convicted, in accordance with the forms of law, of a crime which was part of a strange and terrible tragedy. There are obvious considerations which influence to the exercise of conscientious care in passing upon any question that may be decisive of the fate of this appellant. The question here presented, and with which our only responsible concern is the correct judicial solution, is whether this Court, restricted by constitutional limitation in such case to the correction of errors of law, may properly pronounce Judge Shipp's action in refusing the motion for new trial on after-discovered evidence to be reversible error. To the Circuit Judge in such matters the law commits the determination of all issues of fact. Unless his findings of fact were influenced or controlled by error of law, or unless his conclusion based thereon was so illogical and unreasonable as to amount to manifest abuse of discretion, his action is final and may not be overruled by this Court. After careful consideration I am clearly of the opinion that the appeal record fails to disclose either that Judge Shipp's findings of fact were influenced or controlled by error of law or that his conclusion amounted to such abuse of discretion as would warrant this Court in setting aside his order. I therefore concur in the opinion of the Chief Justice.