State v. Pate

BROCK, Chief Judge.

The defendant assigns as error the failure of the trial court to allow his motion for judgment of nonsuit.

“On motion to nonsuit, the evidence must be considered in the light most favorable to the state, and the state is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the state’s evidence, are for the jury to resolve, and do not warrant nonsuit. Only the evidence favorable to the state will be considered, and defendant’s evidence relating to matters of defense, or defendant’s evidence in conflict, with that of the state, will not be considered.” 2 Strong, N. C. Index 2d, Criminal Law § 104, pp. 648-651.

The testimony of the witnesses identifying defendant Pate as (1) the man who held the gun during the robbery, and (2) the man who handed the stolen check to the witness Morrison for the purpose of cashing it, is sufficient to take the question to the jury. This assignment of error is overruled.

The defendant next assigns as error that the trial court found as a fact and concluded as a matter of law that the in-court identification of State’s witness, Mrs. Rebecca Roberts, was of independent origin and not tainted by any pretrial identification procedure. Prior to the presentation of evidence at trial, the defendant moved to suppress all. evidence pertaining to identification and the court conducted a voir dire in the absence of the jury. Following the voir dire, the court made findings of fact and concluded that the in court identification of the defendant was not based upon photographic or lineup procedures, constitutionally impermissible in nature or in scope; that such photographic or lineup procedures did not produce identification of the defendant; that identification by the witness in a hallway prior to the preliminary hearing and at the preliminary hearing, was based upon observation at the time of the robbery.

“It is well established in North Carolina that findings of fact made by the trial judge and conclusions drawn therefrom on the voir dire examination are binding on the appellate courts if supported by evidence.” State v. Accor and State v. Moore, 281 N. C. 287, 188 S.E. 2d 332. This assignment of error is overruled.

Defendant also seeks a new trial upon the basis of newly discovered evidence submitted to the trial judge after expiration of the trial term and while the appeal was pending before this Court. The trial court properly determined that it was without authority to entertain a motion for a new trial while the case is on appeal. However, the judge entered an order directing that defendant’s motion for a new trial be made a part of the record on appeal so that it could be considered by this Court.

“The procedure for moving for a new trial in a criminal action on the grounds of newly discovered evidence is well established in this jurisdiction. In State v. Edwards, 205 N.C. 661, 172 S.E. 399, in an opinion by Stacy, C., J., it is said: .

‘ * * :!: [W]hen a case is tried in the Superior Court, and no appeal is taken from the judgment rendered therein, motion for new trial on the ground of newly discovered evidence may be entertained only at the trial term. (Citing authorities.) But, if the case is kept alive by appeal, such motion may be made, as a dernier ressort, in the Superior Court at the next succeeding term following affirmance of the judgment on appeal. (Citing authorities.)’” State v. Thomas, 3 N.C. App. 223, 164 S.E. 2d 391. A new trial will not be awarded in a criminal case in the appellate division for newly discovered evidence. State v. Morrow, 262 N.C. 592, 138 S.E. 2d 245.

For the reasons stated, the motion for a new trial is dismissed without prejudice to the right of defendant to present such motion at the next session of Superior Court held in Meck-lenburg County after this opinion is certified to said Court.

No error.

Judges Britt and Hedrick concur.