Opinion
Filed 19 October, 1949.
Criminal Law 57b — No appeal lies from the discretionary refusal of the Superior Court of a motion for a new trial on account of newly discovered evidence.
APPEAL by defendant from Shuford, Special Judge, at Special May Term, 1949, of CALDWELL.
Attorney-General McMullan and Assistant Attorney-General Bruton for the State.
W. H. Strickland and Max C. Wilson for defendant, appellant.
Criminal prosecution upon a bill of indictment charging defendant with the murder of one Harry Crisp, Jr.
Verdict: Guilty of manslaughter.
Judgment pronounced at November Term, 1948, of Superior Court of Caldwell County.
On appeal to Supreme Court at Spring Term, 1949, no error was found, — see ante, 239, 52 S.E.2d 924. Thereafter at Special May Term, 1949, of Superior Court of said county, defendant filed motion for a new trial on account of newly discovered evidence, — supporting same by certain affidavits. The judge presiding, after hearing the affidavits offered by defendant and the argument of his counsel, denied the motion in his discretion.
From order in accordance therewith defendant appeals to Supreme Court, and assigns error.
Appeal to this 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. 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, 166 S.E. 292, and cases cited therein. See also S. v. Grass, 223 N.C. 859, 27 S.E.2d 443.
Hence under the authority of decisions in these cases the appeal in the present case is
Dismissed.