Tbe first, fourth, sixteenth, and nineteenth exceptions are clearly untenable and call for no discussion; and as to exceptions eleven and twelve it is manifest that tbe court could not have granted tbe motion for dismissal of tbe action without exercising arbitrary disregard of tbe State’s evidence. Beasley testified unequivocally that tbe defendants were bis assailants.
On tbe examination of John C. Storey, deputy sheriff, who was a witness for tbe State, tbe solicitor elicited tbe following testimony: “Q. Did you examine bis (Eiddle’s) leg to see whether there was any bruise on it or not? A. Yes sir. Q. Was it there? A. There was. Q. Where was tbe bruise and what was tbe character of it? A. It was a bruise, I would not say it was cut; the-skin was not broken; it looked more like, more of an indentation or a bruise, where it bad possibly sorter scratched something.” To this evidence tbe appellants excepted. The witness further stated in this connection that there was discoloration of tbe bruise which was about two inches long and that when the witness started to raise the left leg of the trousers Eiddle rolled it up himself, admitting the scratch saying that he had received it on a bed.
It is fundamental, of course, that in criminal prosecutions no man shall be compelled to give evidence against himself. Const., Art. I, sec. 11. The appellant insists that the evidence was admitted in breach of this constitutional interdiction and cites as authority the case of S. v. Jacobs, 50 N. C., 259, in which it was held that during the trial of a criminal action the State had no right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling them to determine his status as a free Negro. In that case the defendant was on trial. But in S. v. Graham,, 14 N. C., 646, it was held that a, prisoner who was under arrest for larceny but not on trial could be compelled by the officer having him in charge to put his foot in a track found in a field for the purpose of comparison; and in S. v. Thompson, 161 N. C., 238, it was held not to be duress to require a prisoner who was present at a coroner’s inquest and was afterwards prosecuted for murder either to put his foot in certain footprints or to place himself in a position from which it could be determined Avhether he could have fired the fatal shot through a *594window and killed the deceased. Confessions which, are not voluntary are generally rejected as evidence on the theory that they are induced by hope or fear; but independent facts ascertained by means of an involuntary confession may be admissible. S. v. Graham, supra. The distinction between the case of S. v. Jacobs, supra, and the present case is that in the former the prisoner, while on trial, was compelled to exhibit himself to the jury and in the latter the witness testifies as to the result of his inspection. S. v. Garrett, 71 N. C., 85; S. v. Thompson, supra; S. v. Turner, 32 L. R. A. (N. S.), 773. Cf. S. v. Campbell, 182 N. C., 911; S. v. Hickey, 198 N. C., 45. Exceptions 1 and 8, therefore, present no adequate cause for a new trial.
The court instructed the jury that the defendants had a legal right to testify or to decline to testify in their own behalf and that the fact that they did not testify should not be considered to their prejudice at any stage of the trial. In this instruction we discover no implication or suggestion, near or remote, that the defendants should have taken the witness stand in their own behalf; and in reference to the alibi the charge is equally free from error. For these reasons exceptions 14 and 15 must be overruled.
The seventeenth exception is addressed to the refusal of the judge to grant a new trial for newly discovered evidence. After the verdict was returned and before the judgment was pronounced the defendants claimed to have discovered new evidence upon which the verdict should be set aside. Upon the trial' there was evidence tending to show that the prosecuting witness did not inform the officers on the night of the robbery that he knew the defendants were his assailants; and the newly discovered evidence was to the effect that he admitted at the time it was not the defendants who had assaulted him. Several witnesses were examined when the motion was made and it is apparent upon the record that his Honor, without in any manner abusing his discretion, gave the matter careful and deliberate consideration.
In Vest v. Cooper, 68 N. C., 132, the Court observed that it is as well settled as anything in the practice that the presiding judge may set aside a verdict and grant a new trial for newly discovered evidence in the exercise of his discretion, from which no appeal lies except in case of abuse. This rule has been uniformly observed in subsequent decisions. Braid v. Lukins, 95 N. C., 123; S. v. Rhodes, 202 N. C., 101; S. v. Cox, ibid., 378; S. v. Griffin, ibid., 517; S. v. Moore, ibid., 841; S. v. Lea, 203 N. C., 316; S. v. Edwards, post, 661. Upon investigation of all the exceptions we find
No error.