State v. Bryant, 236 N.C. 379 (1952)

Oct. 29, 1952 · Supreme Court of North Carolina

236 N.C. 379

STATE v. JOHNNIE BRYANT.

(Filed 29 October, 1952.)

Criminal Law §§ 57b, 67b—

An appeal does not lie from a discretionary denial of an application for a new trial on tbe ground of newly discovered evidence.

Appeal by defendant Jobnnie Bryant from Burney, J., at August Term, 1952, of SampsoN.

Criminal prosecution upon four separate warrants eacb upon an affidavit charging defendant and another with larceny of chickens.

Yerdiet: “That said Johnnie Bryant is guilty of larceny of chickens.”

Judgment: Confinement in the common jail, etc.

On appeal therefrom to Supreme Court at Spring Term, 1952, no error was found. See 235 N.C. 420, 70 S.E. 2d 186.

Thereafter at the next succeeding term, August Term, 1952, of Superior Court of Sampson County, N. C., defendant filed, in writing, motion for a new trial on account of newly discovered evidence, — supporting same by certain affidavits. The presiding judge, after considering said written motion and affidavits filed, and an examination of the record of the case on appeal to Supreme Court, as aforesaid, denied the motion in his discretion.

From order in accordance therewith defendant appeals to Supreme Court, and assigns error.

Attorney-General McMullan and Assistant Attorney-General Bruton for the State.

David J. Turlington, Jr., for defendant, appellant.

’W’iNBORNE, J.

Appeal to the Supreme Court does not lie from a discretionary determination of an application for a new trial on the ground of newly discovered evidence. See S. v. Suddreth, 230 N.C. 754, 55 S.E. 2d 690; also S. v. Thomas, 227 N.C. 71, 40 S.E. 2d 412; S. v. Rodgers, 217 N.C. 622, 8 S.E. 2d 927; S. v. Lea, 203 N.C. 316 (at 322), 166 S.E. 292, and cases there cited. Also S. v. Grass, 223 N.C. 859, 27 S.E. 2d 443; S. v. Parker, 235 N.C. 302, 69 S.E. 2d 542.

Hence under the authority of these cases the appeal in the present case is

Dismissed.