State v. Williams , 244 N.C. 459 ( 1956 )

94 S.E.2d 374 (1956) 244 N.C. 459

STATE
v.
Robert A. WILLIAMS.

No. 75.

Supreme Court of North Carolina.

September 19, 1956.

George B. Patton, Atty. Gen., Robert E. Giles, Asst. Atty. Gen., for the State.

J. Wayland Sledge, New Bern, for defendant, appellant.

DENNY, Justice.

The original counsel in this case, Mr. Charles L. Abernethy, Jr., having testified in the hearing below, filed a motion in this Court requesting permission to withdraw as counsel for the defendant. We allowed the motion.

The defendant contends that he is entitled to have this criminal charge nol prossed and abated under the provisions of Chapter 140, Public-Local Laws of 1935, which are applicable to the criminal terms of the Superior Court of Craven County. The pertinent part of the Act upon which the defendant relies, is as follows: "Sec. 4. That when any defendant is held to bail in said court and has attended three successive terms of said court, excluding the term to which the bail was returnable, and has not, at any of such terms, moved for a continuance of said cause against said defendant, such charges against said defendant shall be nol prossed and he shall be forever discharged from further prosecution on such charges: Provided, this section shall not apply to defendants charged with felonies." Section 2 of the Act only requires defendants to attend court when their cases are calendared for trial.

The defendant moved for a nol pros of this action pursuant to the provisions of the above Act before pleading to the bill of indictment when the case was called for trial at the January Term 1956. The court at that time found as a fact that the case was calendared and that the defendant attended the June Criminal Term 1955, the August Special Criminal Term 1955, and the November Criminal Term 1955; that the case was not calendared and that the defendant did not attend the September Criminal Term 1955 of the Superior Court of Craven County. The motion was denied on the ground that the defendant did not attend three successive terms of the court. The defendant excepted to this ruling, and his second assignment of error in his case on appeal to this Court at the Spring Term 1956 was based thereon.

On appeal from a refusal of the court below to grant a new trial upon the ground of newly discovered evidence, we will not review questions assigned as error in a former appeal to this Court which was dismissed for failure to comply with our rules.

We take the view that the present appeal presents only the question whether the trial court committed error in denying the defendant's motion for a new trial on the ground of newly discovered evidence.

The sum and substance of the evidence upon which the defendant moved for a new trial on the ground of newly discovered evidence, is simply this: The defendant testified in the hearing below that he also attended the April Criminal Term 1955 of the Superior Court of Craven County; that no motion for a continuance of the case was made on his behalf, and that the only reason he did not testify as to his attendance at the above term of court when the original motion was made to nol pros the case at the January Term 1956, was because he was not asked about his attendance at such term. Counsel for the defendant who testified in the hearing below, admitted that in the former hearing no evidence was offered tending to show that the defendant had attended the April Criminal Term 1955 of the Superior Court. The defendant offered in evidence the printed calendar for the April Criminal Term 1955 which showed this case calendared for trial on Wednesday, 13 April 1955. The Clerk of the Superior Court of Craven County testified that a subpoena issued in the case and returned on 13 April 1955, was at all times available to the defendant and his counsel had they inquired about it.

In the case of State v. Casey, 201 N.C. 620, 161 S.E. 81, 83, Stacy, C. J., stated the prerequisites to the granting of new trials on the ground of newly discovered evidence, one of which being that "due diligence and proper means were used and employed to procure the testimony at the trial." It is clear from the evidence offered in the hearing below that all the evidence now proffered as newly discovered evidence was known to the defendant and his counsel at the time of the original hearing in January 1956, or could have been procured by due diligence.

It is also stated in the last cited case, "To do justly is the goal of the courts in every case,' but this does not mean to favor the negligent at the expense of the diligent party. He who sleeps upon his rights may lose them."

Moreover, a motion for a new trial upon the ground of newly discovered evidence, is addressed to the sound discretion of the trial court, and its refusal to grant the motion is not reviewable in the absence of abuse of discretion. State v. Parker, 235 N.C. 302, 69 S.E.2d 542. No abuse of discretion is suggested on this record. A motion for a new trial in a criminal case, on the ground of newly discovered evidence, will not be granted in the Supreme Court. The rule is otherwise, however, in civil actions. See State v. Casey, supra.

Furthermore, no appeal lies to this Court from a discretionary determination of an application for a new trial for newly discovered evidence. State v. Murphy, 236 N.C. 380, 72 S.E.2d 751; State v. Bryant, 236 N.C. 379, 72 S.E.2d 750; State v. Suddreth, 230 N.C. 754, 55 S.E.2d 690; State v. Thomas, 227 N.C. 71, 40 S.E.2d 412; State v. Rodgers, 217 N.C. 622, 8 S.E.2d 927; State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Lea, 203 N.C. 316, 166 S.E. 292. Hence, under the authority of the above cases, this appeal is dismissed.

Appeal dismissed.