Opinion of the Court

[115 S. C.-407; Before BOWMAN, J., Orangeburg, May, 1917. Appeal dismissed.

George Sweet indicted for the murder of Robert Wallace. Upon conviction for manslaughter the defendant appeals.

Thos. F. Brantley, Esq., for appellant, cites: Rule as to granting of new trial on ground of after discovered evidence: 33 S. C. 404; 74 S. C. 568; 106 S. C. 437.

Solicitor A. J. Hydrick for respondent. Oral argument. Feb. 28, 1921.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

The defendant was indicted for murder, but the jury found him guilty of manslaughter.

The appeal is from an order refusing a motion for a new trial, on the ground of after-discovered evidence.

The only testimony upon which the motion was made was the affidavit of Thomas F. Brantley, Esq,, one of the dedant's attorneys, which was to the following effect:

"That Axon, one of the witnesses in the case of the State v. Sweet, which was tried this 15th day of May, told him after the trial today that when he met George Sweet with Mr. Frank De Mars, and after he and Mr. De Mars carried George Sweet back to his home, where the shooting took place, that George Sweet told him in the presence of Mr. Frank De Mars that he had ordered Robert Wallace out of his house and that he had come back with a knife in his hand, and when he came at him with the knife he shot him, and that

October Term, 1920.

the [using oath] had reported him for selling whiskey; that this deponent is one of the attorneys for the defendant and did not know of this testimony in time to get out, so as to get the whole truth of Sweet's statement to Mr. Axon."

This testimony was merely cumulative; the defendant and his wife both having testified that the deceased had a knife in his hand at the time he was shot.

Furthermore, the defendant has failed to make it appear that his Honor the presiding Judge erroneously exercised his discretion in refusing the motion.

Appeal dismissed.

10577

MILLER v. GOODWIN.

(106 S. E. 30)

APPEAL AND ERROR-JUDGEMENT PROPERLY RENDERED AGAINST APPELLANT FAILING TO COMPLY WITH CONDITIONS OF MANDATE.-Where the Supreme Court on appeal had declared a deed void on condition defendants pay a judgment and costs within 30 days, but otherwise confirmed the sale, defendant could have given notice and taxed all costs, or he could have made his own calculation of costs and tendered the correct amount as provided for in the judgment of the Court, but, if he failed to comply with the condition, judgment was properly rendered against him.

Before McIVER, J., Richland. April, 1920. Affirmed.

Action by E. McKay Miller against George Goodwin. From order overruling motion to correct taxation of costs, the defendant appeals.

Mr. Barnard B. Evans, for appellant, cites: Reversal of order confirming sale involved setting aside entry of

Opinion of the Court

[115 S. C.-409] judgment with costs: 18 S. C. 555; 21 S. C. 340; 23 S. C. 120. Circuit Judge should have ordered taxation made: 73 S. C. 20. Taxation must await final judgment when circuit decree has been reversed: 35 S. C. 165. Expenses should be taxed as disbursement: 60 S. C. 58. In equity cases Court controls costs: 20 S. C. 167. Disbursements must be verified to be allowed: 24 S. C. 257. What are disbursements: 48 S. C. 494.

Hunter A. Gibbes, for respondent, cites: Order nisi in 113 S. C. 365, not having been complied with, appellant's rights have expired.

Feb. 10, 1921.

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

This is the third appeal in this case.

111 S. C. 333; 98 S. E. 129; 113 S. C. 365; 101 S. E. 834. It is from an order of his Honor JUDGE MCIVER, wherein he finds:

"That the defendant has failed to comply with the terms of the order of the Supreme Court within the time specified."

The time specified by this Court in the second appeal was:

"The judgment of this Court is that, if the appellants, within 30 days after remittitur of this Court is received in the Circuit Court, shall pay to the master for Richland county the judgment fixed by the decree of JUDGE TOWNSEND, in full and all interest thereon, up to the day of payment, as fixed by his judgment, that is, when the remittitur of this Court, and all costs due thereon up to the time of sale intended to be made in March, 1919, then the deed executed to the

October Term, 1920,

respondents be set aside and declared to be null and void, and the order appealed from reversed; otherwise the order appealed from confirmed, however, with no costs of this appeal."

This remittitur was received in Circuit Court February 5, 1920. Exceptions, three in number, allege error, and overruled.

His Honor's finding was correct. Defendant could have given notice and taxed all costs. He could have made his own calculation and tendered correct amount, as provided for in the judgment of this Court. Having failed to comply with the madate of this Court, his Honor was correct in his holding, and judgment is affirmed.

10547

MCQUEEN v. SOVEREIGN CAMP W. O. W.

(106 S. E. 32)

INSURANCE-PROVISION FOR ADDITIONAL PREMIUM ON BEING "ENLISTED" FOR MILITARY SERVICE INCLUDES DRAFTED MEN.-The provision of a life insurance policy reducing the amount of recovery in case of insured's death outside the United States while in military service as an enlisted man, unless insurer was notified of such enlistment and an additional premium paid, means, by the word "enlisted," one enrolling in the service, whether he volunteered or was drafted, and where such a one failed to comply and died in service his beneficiary cannot recover the full amount of the policy.

Before McIVER, J., Dillon, April, 1920. Reversed. Action by Neill E. McQueen against Sovereign Camp W. O. W. on an insurance certificate. From judgment for plaintiff the defendant appeals.

The provision of the certificate of insurance referred to in the opinion follows:

"(5) In the event the holder of this certificate shall die while serving in any branch of the United States Army or Navy, either as an officer or enlisted man, outside the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality. Provided, that should the holder of this certificate so desire, he may within thirty (30) days after entering the service in any branch of the United States Army or Navy, as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America and pay in advance to the sovereign clerk, for the society, the sum of thirty-seven and 50-100 ($37.50) dollars, per one thousand dollars insurance per annum, in addition to the regular assessment prescribed by Section 56 of the Constitution and laws of the Woodmen of the World, and upon so doing at the death of the member, or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries."

Messrs. Gibson & Muller, for appellant, cite: Two classes in the army are "officers" and "enlisted men": Draft Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, Secs. 2044a, 2044k) Sec. 3; C-15, Sec. 2, C-15, Sec. 12: R. S. Secs. 1232, 1234. Construction contended for has been approved: 107 Mass. 282; 212 S. W. 310.

Joe P. Lane, Esq., for respondent, cites: "Enlist" denotes voluntary entry into the army and drafted man is not an "enlisted man: Webster's Dict. 1911; 14 Cyc. 1017; 15 Cyc. 1051; 16 Ct. C1. 202.

February 28, 1921.