July 31, 1923. The opinion of the Court was delivered by The "case" contains the following statement:
"The defendant, Walter Mahaffey, was tried along with John Lollis, at the fall term of the Court of Sessions for Anderson County, for robbery and grand larceny and assault and battery with intent to kill, upon L.W. Lollis. In the same indictment Zera Durham and C.S. Whitmire were charged with the same offense, but only John Lollis and Walter Mahaffey were tried. Mr. J.D. Lanford, an attorney of Greer, S.C. appeared for both defendants on the trial of the case; motion for new trial was entered, but not argued. After sentence, notice of appeal was served, and he proceeded no further. The verdict was as follows: `We find the defendants John Lollis and Walter Mahaffey guilty of robbery, grand larceny, and simple assault, with recommendation for mercy as to Walter Mahaffey.' The time elapsed for perfecting the appeal, and the father of Walter Mahaffey, upon being notified that his appeal had not been perfected, obtained permission of the Solicitor to employ other counsel and allow him a reasonable time to perfect the appeal."
The exceptions, three in number, raise two points: One that the evidence does not sustain the verdict; and the other that the defendant was deprived of any charge upon the law as to the testimony of an accomplice. The latter must be overruled. This Court had said in the case of State v. Smalls, 98 S.C. 299; 82 S.E., 421:
"Article 5, Section 26, of the Constitution of 1895 is: `Judges shall not charge juries in respect to matters of fact, but shall declare the law.' The intention of this section was clearly to leave to the jury all questions of fact, and to prevent the Judges from forcing upon juries their own convictions as regards matters of fact. The force and effect of any evidence is for the jury; it is for them to determine what credence they will give to it and what weight it will have with them. The juries are the judges of all *Page 315 matters of fact, and cannot look to the Court for a controlling view; they are to form their own conclusions from the facts submitted to them, and the Court cannot employ its influence over the minds of the juries to force upon them its conclusions in any case. The Court is not at liberty to give its conclusions in any particular portions of the testimony. The real object of this clause in the Constitution is to leave the decision of all questions of fact to the jury exclusively, uninfluenced by any expression of opinion by the Judge. The Judge's position would naturally add great weight to any opinion he might express upon any question of fact arising in a case, and for this reason he should carefully refrain from and avoid expressing any opinion that he may have formed from the facts as to the force, weight, and effect, leaving it to the jury to draw their own conclusions, and not impress upon them any impressions that the testimony may have made in the mind of the Judge. The juries are to determine all questions of fact, uninfluenced by the Judge and unbiased by his impressions."
No motion was made for a directed verdict, and the motion for new trial was noted, but not argued, before Special Judge Hon. M.L. Smith. No appeal was taken in the time allowed, but attorneys were changed, and by consent of the Solicitor time was allowed to perfect the appeal. We have examined the evidence carefully, and we think there should be a new trial, notwithstanding that no effort was made under rules of Court in asking for a directed verdict and arguing the motion for a new trial.
If the original attorney of the appellant was representing him, we would dismiss the appeal for noncompliance with the rules of Court; but, in order that substantial justice may be done in the instant case, under the peculiar facts and circumstances, and not to be understood as a precedent in the future, we will remand the case for a new trial. *Page 316
New trial granted.
MR. JUSTICE COTHRAN concurs.
MR. JUSTICE MARION concurs in result.
MR. CHIEF JUSTICE GARY did not participate.