ing; the object of the testimony offered is to prove: (1) That the property in question is held as trustee for the use of dealers in fish; (2) that Terry Fish Company is such a dealer in possession under the trust; (3) that the city has committed a breach of trust, and title is not any longer in the city, and by operation of law the title is divested, and under both of these grounds the doctrine that the tenant is estopped to deny the title of the landlord does not apply."

And the present attorney for Terry says in his brief that "The deed would have shown that the property occupied by he Terry Fish Company was deeded to the city council of Charleston to use for the purposes of a public market, and that the city council, in claiming to take this property out of the hands of the board of market commissioners who have charge of the public market of the city of Charleston, and putting it into the hands of the dock commission, and in endeavoring to eject the Terry Fish Company, was acting in violation of the terms of the trust deed."

The same counsel also says: "That while counsel for the city made an objection that the proper notice had not been given to him that the deed would be produced, yet the real reason why the deed was excluded was upon the ground that this was a proceeding between landlord and tenant, and that the tenant could not dispute the title of its landlord."

Granting that the trust deed has been correctly recited by the apellant's counsel, the terms of it so recited do not negative the right which the city now asserts, for there is no testimony tending to show that the city intends to divert the wharf from the purposes of a public market. And as the deed is not before us, we are limited in the construction of it to what counsel for the defendant has said about it. There is, therefore, no circumstance to exempt the instant cause from the operation of the general rule of law before stated, if Terry was tenant of the city.

We revert now in sequence to the first ground, that the notice to quit ought to have run in the name of the commis

sioners of the market or the dock commission, and not in the name of the city. The contention of the appel2 lant is that the dock commission, a creation of statute law, and not the city, was landlord. But Mr. Bryan contended at the trial: "That the dock commission is not the landlord, or the representative of the landlord, in this matter." And Mr. Terry testified: "I stand under this contract with Mayor Rhett; he being the landlord and I being the tenant. I claimed the wharf needed repairs and charged it to the rent account. I have been there as tenant, first of the Consolidated Company and afterwards as tenant of the city council of Charleston, a supposed case of tenancy. I paid rent."

It is, therefore, perfectly manifest that the city is landlord and Terry is tenant under it.

Finally, it is contended by the appellant that Terry was not formally notified by the city three months before January 1, 1918 (the time set for the tenant to quit), that the premises should be vacated on that day. About that matter the appellant's counsel says: "There is, of course, no doubt that Terry had been notified that possession of the property occupied by him was desired, but the point we make is that, if the city council was the landlord, then Terry never received any three months' notice from such landlord that it was desired to terminate the tenancy. And this was necessary before he could be ejected."

Counsel for the city admitted at the bar that the tenant was entitled to have three months' notice to quit. The testimony is plain to the effect that on July 2, 1917, Dingle, who was both secretary of the dock commission and city engineer, sent the defendant a letter of notification "that the lease of the city property, east end of Market street, shall terminate January 1, 1918. And on June 27, 1917, Mr. Barbot, who was clerk of the city council, sent the Terry Fish Company a letter, advising it "that the lease of the city property at the foot of Market street shall terminate January 1, 1918.”

Syllabus.

[113 S. C. And on July 10, 1917, in a regular meeting of the city council, the action of the dock commission first above stated was approved by the council. And on September 5, 1917, the Terry Fish Company acknowledged in a letter to the chairman of the market commissioners that it had received "a notice from the ways and means committee that we are to vacate our present place of business on January 1, 1918." The judgment below is affirmed.

10374

STATE v. MURPHY.

(102 S. E. 288.)

CRIMINAL LAW-NEWLY DISCOVERED EVIDENCE, SHOWING NO MITIGATING CIRCUMSTANCES, NOT GROUND FOR NEW TRIAL.-Where defendant, who was charged with murder, testified in his own behalf and narrated in detail how he killed deceased, alleged newly discovered evidence, which threw no light on the circumstances which led to or resulted in the homocide, and did not tend to mitigate the commission of the crime, but merely tended to show that the homicide was not committed on the night stated by witnesses, is no ground for new trial.

Before TOWNSEND, J., Richland, Summer term, 1919. Affirmed.

Jess Murphy was convicted of murder, and from an order denying new trial for after-discovered evidence, he appeals.

Messrs. Hugh R. Clinkscales and Charles T. Smith, Jr., for appellant, submit: The ground upon which this appeal is made is that the presiding Judge abused his discretion, in that he passed upon facts which should be heard by a jury: 105 S. C. 437; 91 S. E. 382; (Ga.) 70 S. E. 975.

Mr. Solicitor Spigner, for the State.

February 23, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

This appeal is from an order refusing a new trial for after-discovered evidence.

Appellant was convicted of the murder of the woman with whom he was living in the city of Columbia. She was last seen alive on Monday, July 31, 1916. On Wednesday following her dead body was found in a trunk in the house which had been occupied by them. In the meantime appellant had evaded arrest and fled the State. He was captured in Pennsylvania in March, 1919, and brought back for trial. The State rested its case on proof of the circumstances, which included the testimony of two witnesses that, on Monday night, July 31st, they heard screams coming from the direction of the house in which appellant and the woman lived, and the confession of appellant to the officer who brought him from Pennsylvania. Appellant testified in his own behalf, and narrated in detail the circumstances of the difficulty which resulted in his choking the woman to death, the concealment of her body, and his flight. He said that he killed her and concealed her body about 1 o'clock Monday afternoon. There was no other eyewitness to the homicide.

After conviction, he moved for a new trial on the affidavit of two women, which tended to show that he spent Monday night at the house of one of them, and, inferentially, that the homicide was not committed that night, and that the screams heard by the State's witnesses did not come from the house in which appellant and deceased were living.

The motion was properly refused on the ground that the new testimony was immaterial. The most that is claimed for it is that, if it had been before the jury, it might have had the effect of inducing them to recommend appellant to mercy, and thereby save him from the extreme penalty of death. There is nothing in the new testimony which throws light on the circumstances which led to or resulted in the homicide, or which tends to mitigate the commission of the crime, and, therefore, nothing which properly could have had the effect claimed. Order affirmed.

256

Syllabus.

10387

STATE v. GIBBS.

(102 S. E. 333.)

[113 S. C.

1. WITNESSES-TO BE DISCREDITED BY TESTIMONY OF OTHERS THAT WITNESS IS NOT CREDIBLE.-In discrediting a witness the approved practice is to produce testimony of others that the witness is not creditable

2. WITNESSES-CROSS-EXAMINATION OF WITNESS AS TO MARRIAGE WHILE HAVING A LIVING HUSBAND IMPROPER FOR PURPOSE OF TESTING CREDIBILITY.-Cross-examination of witness as to whether she had married her deceased husband at a time when she had another husband living, for the purpose of testing her credibility as a witness, was improper, and exclusion of answer was not error.

3. WITNESSES-CROSS-EXAMINATION AS TO CONTRADICTORY STATEMENT MUST RELATE TO SAME TIME THAT STATEMENT SOUGHT TO BE CONTRADICTED WAS MADE.—In homicide prosecution, cross-examination of witness as to statement of other witness, made after the shooting, for purpose of contradicting testimony of such witness, was improper, where evidence of the witness sought to be contradicted related to what she had said before the shooting.

4. HOMICIDE-PERSON ON OWN PREMISES NOT REQUIRED TO RETREAT
WHEN BEING ASSAULTED WITH DEADLY WEAPONS.-A person on his
own premises and outside of his dwelling, but within the curtilage,
if assaulted by a deadly weapon, is not bound to retreat, but may
stand on his own ground and meet such attacks even to killing his
assailant.

5. HOMICIDE-PREVIOUS DIFFICULTIES AND BEING UNDER A PEACE BOND
DOES NOT DEPRIVE ACCUsed of Self-DEFENSE PLEA.-That the defend-
may have
ant had had previous difficulties with deceased, and that he
been under a peace bond, would not deprive him of his plea of self-
defense if he comes within the requirements of the self-defense law.
6. CRIMINAL LAW-REFUSAI TO INSTRUCT ON A PHASE OF SELF-DEFENSE
RAISED BY THE EVIDENCE ERROR.-In homicide prosecution, Court's
refusal to instruct that the fact of prior difficulties did not deprive
defendant of his self-defense plea, where the previous difficulties
between the parties was an important element in the case, held error,
notwithstanding instruction on the elements of self-defense not cov
ering such matter.

Before BOWMAN, J., Greenville, Spring term, 1919 Reversed and new trial ordered.