(Filed 29 October, 1952.)
Appeal by defendant from Burney, J., at August Term, 1952, of SAMPSON.
Criminal prosecution upon warrant issued out of County Eecorder’s Court, tried in Superior Court of Sampson County, on appeal thereto from judgment of the Eeeorder’s Court charging, as limited by the trial judge, that defendant violated prohibition laws in manner therein stated.
Yerdict: “Guilty of possession for the purpose of sale and of operating a public nuisance.”
Judgment: Confinement in the common jail, etc.
On appeal therefrom to the Supreme Court at Spring Term, 1952, no error was found. See 235 N.C. 503, 70 S.E. 2d 498.
Thereafter at the next succeeding term, August Term, 1952, of Superior Court of Sampson County, N. C., defendant filed in writing a motion for new trial on account of newly discovered evidence, — supporting same by certain affidavits.
The presiding judge, after considering said written motion and affidavits filed therewith, and on examination of the record of the case on appeal to the 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.
Per Curiam.
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. Hence, under authority of case of S. v. Bryant, ante, 379, opinion this day handed down, the appeal in the present case is
Dismissed.