State v. Nance, 253 N.C. 424 (1960)

Nov. 23, 1960 · Supreme Court of North Carolina

253 N.C. 424

STATE v. GENE NANCE.

(Filed 23 November, 1960.)

1. Criminal Law §§ 125, 140—

A motion for a new trial for newly discovered evidence may not be made in a criminal ease in tbe Supreme Court, but may be made only in the trial court, at the trial term, or, in case of appeal, at the next succeeding term of the Superior Court after affirmance of the judgment by the Supreme Court.

2. intoxicating Liquor § 13c—

Evidence of defendant’s guilt of illegal sale of intoxicating liquor to a minor held, sufficient to take the case to tlie jury.

Appeal by defendant from Hooks, Special Judge, August Criminal Term, 1960, of Cabaekus.

This is a criminal action in which the defendant, Gene Nance, was originally tried and convicted) in the Cabarrus County Recorder's Court on a warrant charging him with the illegal sale of intoxicating liquors to a minor, Bill Eudy, age 15 years. The defendant appealed to the Superior Court.

Bill Eudy testified that he was 16 years of age at the time of the trial below; that on the night of 25 November 1959 he and Ronnie Kiker went to the defendant’s home, knocked on the door and entered the hall thereof; that theretofore he and the said Ronnie Kiker had “made up between us” the money; that Ronnie toldi the defendant he wanted to buy a pint of liquor; that the defendant got the liquor and gave it to Ronnie, who handed the defendant $3.50. These boys then went to the high school where a dance was in progress and drank the liquor. Later, the same evening, these same boys and Wayne Starnes each put up some money, returned to the defendant’s home and bought another pint of liquor. Eudy testified that, “Me and Ronnie gave him (the defendant) $3.50 for it.” Ronnie Kiker testified that he was only 17 years of age at the time of the trial below.

The jury returned a verdict of guilty. From the judgment imposed, the defendant appeals and assigns error.

Attorney General Bruton, Asst. Attorney General McGalliard for the State.

Ann L. McKenzie for defendant.

Pee CüRiam.

The defendant has filed) in this Court a motion for a new trial based on newly discovered evidence.

A motion for a new trial for newly discovered evidence in a criminal case may be made in the trial court only, at the trial term, or, in case of appeal, at the next succeeding term of the Superior Court after affirmance of the judgment by the Supreme Court. S. v. Casey, 201 N.C. 620, 161 S.E. 81; S. v. Edwards, 205 N.C. 661, 172 S.E. 399; S. v. Gibson, 229 N.C. 497, 50 S.E. 2d 520.

The defendant assigns as error the refusal of the court below to grant his motion for judgment as of nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence. In our opinion, the evidence was sufficient to take the case to the jury. This assignment of error is overruled.

No prejudicial error has been made to appear that in our opinion would justify the granting of a new trial.

No error.