12791

#### STATE v. HEWITT

(150 S. E., 799)

*369
      *Mr. H. P. Burbage,*for appellant.

*Mr. D. B. Stover,*for respondent.

December 31, 1929.

The opinion of the Court was delivered by

Mr. Justice Carter.

This is an appeal by the defendant, B. B. Hewitt, from an order of his Honor, M. F. Ansel, County Judge, refusing a motion for a new trial following convictin in the County Court of Greenville County, on a charge of nonsupport of his wife and minor children. The facts in the case pertinent to the appeal, briefly stated, are as follows:

The defendant has a wife and minor children, and, at the time of his conviction for the alleged offense and some timé prior thereto, resided in the County of Greenville, in the country some distance from the City of Greenville, when the trial was had. November 30, 1928, Emma Hewitt, the wife of the defendant, swore out a warrant before Magistrate Victor, of Simpsonville in said county, charging the defendant with failing to support his wife and minor children; some time after the warrant was issued, on motion of the defendant, the case was transferred to Magistrate J. M. Barry, of Fountain Inn, in said county, and a preliminary hearing was had in January, 1929, before Magistrate Barry, who bound the defendant over to be tried in the sessions court, which convened on the second Monday of that month, January. On the first Monday in May, the grand jury returned a true bill against the defendant on said charge, and on the 10th day of May the case was transferred to the County Court, but no notice was served on the defendant or his counsel of the transfer of the case to the County Court. Just before the June term of the County Court the County Solicitor furnished the press of the City of Greenville a list of the cases for trial at that term of the Court, but the same was not published until Friday preceding the convening of the Court on Monday, and, so far as the record discloses, the *370only place where the information could be obtained was the Clerk of Court’s office or the County Solicitor’s office.. When the case against the defendant was called at the June term of the Court, neither the defendant nor his attorney was present, but the Court proceeded with the trial, tried defendant in his absence, and the jury found the defendant guilty. The County Judge filed a sealed sentence with the Clerk of the Court. On the 3d day of July, defendant having learned of what had taken place, H. P. Burbage, attorney for the defendant, made a motion before his Honor, Judge Ansel, for a new trial, basing the motion upon the affidavit of the defendant and the affidavit of his attorney. His Hon- or, Judge Ansel, refused the motion and issued an order to that effect. From the order refusing a new trial, the defendant has appealed to this Court.

After careful consideration of the statements contained in the affidavits referred to (which will be reported) we are satisfied that the motion for a new trial should have been granted. The defendant is an illiterate man, residing in the country some distance from the county seat. He was evidently taken by surprise, also his counsel. If the statements contained in defendant’s affidavit are true he certainly has a good defense to the charge against him. Considering the entire record, we think the defendant presented good grounds for the motion, and, in our opinion, his Honor, Judge Ansel, in the exercise of his discretion, should have granted the motion, and refusal to do so was error.

It is, therefore, the judgment of this Court that the order of his Honor, Judge Ansel, refusing to grant the defendant a new trial, be and is hereby reversed, and the case remanded for a new trial.

MR. Chiee Justice Watts and Messrs. Justices Cothran, BeEase and StabeEr concur.