State v. Moore, 202 N.C. 841 (1932)

April 13, 1932 · Supreme Court of North Carolina

202 N.C. 841

STATE v. DUDLEY MOORE.

(Filed 13 April, 1932.)

Criminal Law L e — No appeal will lie from order of trial court refusing motion for new trial for "newly discovered evidence.

A motion for a new trial for newly discovered evidence, made at the next succeeding term of criminal court after affirmance of the former conviction by the Supreme Court, is addressed to the discretion of the trial court, and his order refusing to grant the motion is not reviewable, and an appeal therefrom will be dismissed.

Appeal by prisoner from Warlick, J., at November Term, 1931, of DavidsoN.

Appeal dismissed.

Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.

Price, J ones & E scoff ery for prisoner.

Pee Cukiam.

At the August Term, 1931, of the Superior Court of Davidson County the prisoner was convicted of murder in the first degree and was sentenced to' death by electrocution. On appeal to the Supreme Court the judgment was affirmed. S. v. Moore, 201 N. C., 618. At the next ensuing term of the Superior Court held for the trial of criminal actions the prisoner made a motion for a new trial on the ground of newly discovered evidence. After considering the affidavits offered by the prisoner and the argument of counsel, the trial judge in the exercise of his discretion denied the motion. The prisoner excepted and appealed.

The question whether a new trial shall be granted for newly discovered evidence is addressed to the discretion of the court. Goodman v. Goodman, 201 N. C., 808; S. v. Cox, ante, 378; S. v. Griffin, ante, 517. The exercise of such discretion .is not subject to review on appeal to this Court. S. v. Branner, 149 N. C., 559; S. v. Griffin, supra. This principle is settled and will be strictly .enforced. The appeal is

Dismissed.