dissenting. I regret to say that I am unable to concur in the conclusion that there should be a new trial in this case, for I do not think that the grounds relied upon for that purpose can be sustained. The pressure of other and more important official duties forbids me from now devoting the time necessary for the preparation of the reasons for my dissent, and I do not feel justified in delaying the disposition of this appeal until I could find the time necessary for that purpose.
Judgment reversed.
Pending the appeal in this case, a motion was made before this court for leave to apply to the Circuit Court for a new trial on the ground of after-discovered evidence. This motion was granted. See 41 S. C., 506. The motion for new trial was then made on Circuit before Judge Ernest Gary, on the following affidavit, and others:
“Personally comes W. B. Stoddard, who, upon oath, says: That he was well acquainted with Herman G. Gilreath, and that he knows the defendant, J. Mims Sullivan. That he was a personal friend of the deceased, Herman G. Gilreath. That on the evening of the 13th day of June, 1892, in the city of Greenville, between the hours of 10 and 11 o’clock p. m., he met in the Mansion House, Herman G. Gilreath. They walked out of the Mansion House together, and walked up Main street to Humphrey’s shoe store, and stopped at the corner. As de*219ponent and Herman G.'Gilreath walked up the street together, and when at the corner aforesaid, he told this deponent that he had had a difficulty with one J. Mims Sullivan, the defendant, and that he, Gilreath, intended on the following morning to write to said Sullivan a note; and that he, Gilreath, intended to give Sullivan a street caning for the gross insult that he had given him, presenting his walking cane at the same time; further stating that he did not want to shoot Sullivan, and said if Sullivan resented the caning, and it was necessary, he would use this thing, presenting his pistol. Deponent warned the said Gilreath at the time of making statement, that he should not be talking in that way, even if he intended to do a thing of that kind, whereupon he asked in reply this deponent to ‘say nothing about what he had told him,’ ‘that he would hear from the whole matter before sundown on the following day.’ That deponent did not tell any one of the conversationuntil after the defendant had been tried and convicted. That deponent is an attorney at law, and is clerk and attorney for the board of county commissioners for Greenville County. (Signed) W. B. Stoddard. Sworn to and subscribed before me, this 19th February, 1894. W. D. Metts, C. C. P.”
The order of the Circuit Judge was as follows: This is a motion made before me upon affidavits fro and con for a new trial upon after-discovered evidence, the Supreme Court having suspended the appeal in this case until this motion can be made. After hearing the motion and giving due consideration to the same, and after argument of counsel, the State having shown, among other things, that one of the material witnesses, to wit: W. B. Stoddard, has died since the making of his affidavit, and that two of the other persons whose affidavits are material which were used have been convicted of infamous offences, and that the same could not, under the rules of law, be used on the trial of the cause; and it, therefore, not appearing to me that the result would probably be different from the other evidence exclusive of this, I cannot grant the motion. It is, therefore, considered by the court and ordered, that the motion for a new trial upon after-discovered evidence be, and the same *220is hereby, refused. It is further ordered, that a copy of this order be certified to by the clerk of this court, and be sent to the clerk of the Supreme Court of this State, to be there filed with the record of this case in that court.
The defendant appealed from this order, and the appeal was argued at the same time and by the same attorneys as the appeal from the judgment of Judge Wallace.
February 20,1895. The opinion of the court was delivered by
Me. Justice Gaey.This was a motion for a new trial on the ground of after-discovered evidence; previous leave therefor having been granted by the Supreme Court (41 S. C., 506). All the affidavits used in the Supreme Court upon the motion to suspend the hearing of the appeal until the appellant could make a motion in the Circuit Court for a new trial, on the ground of afte'r-discovered evidence, were used on the Circuit. Among these was the affidavit of W. B. Stoddard, which will be set out in the report of the case. The said W. B. Stoddard died suddenly subsequent to the hearing of the motion to suspend hearing of the appeal by this court, and before the hearing of the motion herein on Circuit. After hearing read the said affidavits, and after argument of counsel, his honor, Judge Gary, signed the order, which will also be incorporated in the report of this case.
The following is appellant’s exception to said order: “His honor erred in holding that W. B. Stoddard having died since the making of the affidavit, the same could not, under the rules of law, be used on the trial of the cause, and it, therefore, not appearing that the result would probably be different from the other evidence exclusive of this, the motion should be refused. Whereas he should have held that the said affidavit was properly before the court, was competent for the purposes of said motion, and was entitled to as much consideration as if the said W. B. Stoddard had not died.”
15- . If the Circuit Judge had granted a new trial, the testimony of W. B. Stoddard could not have been introduced in evidence upon such trial, because of the death of the said W. B. Stoddard, and the Circuit Judge was not in error in *221refusing to consider said affidavit. The courts are not organized for the purpose of deciding legal abstractions. These views are in harmony with the principles announced in the case of State v. Ezzard, the syllabus of which [in 19 S. E. Rep., 854,] is as follows: “A motion to suspend an appeal, to enable defendant to move for a new trial on the ground of newly-discovered evidence, will be overruled where it is supported only by affidavits of defendants, who did not testify on the trial, as to his connection with the transactions out of which the prosecution arose, and of witnesses resident beyond the jurisdiction of the court” (italics ours). The importance of the fact that the witnesses are within the jurisdiction of the court, is shown by the case of State v. Files, 3 Brev., 304, in which the court, in refusing a motion for continuance on the ground of the absence of material witnesses, says: “Three things are necessary: 1. That the witness is really material, and appears to the court so to be. 2. That the party, who appears, has been guilty of no neglect. 3. That the witness can be had at the time to which the trial is deferred.”
It is the judgment of this court, that the order of the Circuit Court be affirmed.