State v. Casey

Citation161 S.E. 81,201 N.C. 620
Decision Date10 November 1931
Docket Number195.
PartiesSTATE v. CASEY.
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Lenoir County; W. A. Devin, Judge.

Herman Casey was convicted of murder. From an order refusing defendant's motion for new trial after remittitur from the Supreme Court, defendant appeals.

Error and case remanded with directions.

Ruling of court, on motion made during term of trial for new trial for newly discovered evidence, is ordinarily conclusive.

Motion by defendant for new trial on grounds of disqualification of certain jurors by reason of alleged fraud and prejudice, and for newly discovered evidence, made in the superior court at the next succeeding term following affirmance of judgment on appeal.

At the September special term, 1930, Lenoir superior court, Hon. W A. Devin, judge presiding, the movant, Herman Casey, was tried upon an indictment charging him with the murder of one James C. Causey, which resulted in a conviction and sentence of death. On appeal to the Supreme Court, the verdict was upheld and the judgment affirmed; opinion filed June 27 1931.

Several weeks after the adjournment of the September special term of court at which the case was tried, the movant learned for the first time of the matters affecting the jury, and of the newly discovered evidence. Thereupon, at the December term 1930, Lenoir superior court, the next succeeding term after the discovery of said matters, a motion was made before Hon. G. V. Cowper, special judge presiding, for a new trial, upon the grounds stated, which was denied for want of power to entertain the motion, as the case was then pending in the Supreme Court on appeal. This ruling was affirmed. 201 N.C. 185, 159 S.E. 337; Bledsoe v. Nixon, 69 N.C. 82.

On June 29, 1931, two days after the filing of the opinion in this court, and before it had been certified to the superior court of Lenoir county, the movant, without filing a petition to rehear, lodged a motion here for "Mistrial and New Trial" on the same grounds set out in his original affidavits, to wit, disqualification of certain jurors by reason of alleged fraud and prejudice, and newly discovered evidence. This was denied July 2, 1931, and rightly so under the decisions in Moore v. Tidwell, 194 N.C. 186, 138 S.E. 541, and Teeter v. Express Co., 172 N.C. 620, 90 S.E. 927.

The movant thereafter renewed his motion at the regular August term, 1931, Lenoir superior court, the next succeeding term following affirmance of the judgment here, which was denied by Hon. W. A. Devin, judge presiding, on the ground that "this court at this term is without power to set aside said verdict and judgment and grant a new trial for the causes set forth in said motion and affidavit, being of opinion that the defendant's case is not now pending in the Superior Court of Lenoir County."

And further:

"2. The Court is further of the opinion after consideration of said affidavits for the defendant and the State that the allegations tending to show that three of the jurors were disqualified has not been sustained. The court finds that the three jurors whose conduct is sought to be impeached on this motion were competent jurors and that they and each of them acted fairly and honestly in arriving at the verdict in said case.
"3. Upon the defendant's motion for a new trial for newly discovered evidence as alleged in his motion and affidavits the Court is of the opinion that it is without power to set aside the verdict and judgment and grant a new trial for this cause and denies the same. The Court further finds that the alleged newly discovered evidence seems to be in contradiction and cumulative, and considering the great mass of testimony offered at the trial from more than 100 witnesses, doubts that this evidence would have changed the result reached by the jury."

From the order denying his motion, the movant appeals, having applied to the Governor in the meantime for a respite or reprieve of his sentence until the matter could be heard by the Courts.

Shaw & Jones, of Kinston, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY, C.J. (after stating the case).

The appeal calls for a ruling upon an important question of practice: When may the courts entertain a motion in a criminal case for a new trial on the grounds of information affecting the competency of jurors, and for newly discovered evidence, which come to the attention of the defendant after trial and conviction?

Undoubtedly, if knowledge of the matters and things, now urged as grounds for a new trial, had come to the movant during the term of court at which he was tried and convicted, the judge at that term, the trial term, would have been clothed with the power, as well as the duty, to hear and determine the motion upon its merits. State v. Jackson, 199 N.C. 321, 154 S.E. 402; State v. Hartsfield, 188 N.C. 357, 124 S.E. 629; State v. Trull, 169 N.C. 363, 85 S.E. 133; State v. Jimmerson, 118 N.C. 1173, 24 S.E. 494; State v. Fuller, 114 N.C. 885, 19 S.E. 797, 799; State v. De Graff, 113 N.C. 689, 18 S.E. 507; State v. Morris, 109 N.C. 820, 13 S.E. 877; Turner v. Davis, 132 N.C. 187, 43 S.E. 637. And unless some question of law or legal inference were involved in his ruling, it would not be subject to review on appeal. State v. De Graff, supra; Fleming v. R. R., 168 N.C. 248, 84 S.E. 270; Munden v. Casey, 93 N.C. 97.

It is the ruling in a number of cases that, when the matter or new evidence is discovered during the term, the motion must be made to the court that tried the cause, and its ruling thereon, whether for or against a new trial, is ordinarily conclusive. Turner v. Davis, supra; Redmond v. Stepp, 100 N.C. 212, 6 S.E. 727; Carter v. King, 174 N.C. 549, 94 S.E. 4.

Indeed, unless the case is kept alive by appeal, such motion can be entertained only at the trial term. Lancaster v. Bland, 168 N.C. 377, 84 S.E. 529; Stilley v. Planing Mills, 161 N.C. 517, 77 S.E. 760; State v. Bennett, 93 N.C. 5 O3.

Both the trial and appellate courts have exercised the right to grant new trials for newly discovered evidence in civil cases, and the rules governing such applications, in cases appearing on the civil side of the docket, are well established by a number of decisions. But on account of the abuse to which such applications are susceptible, the courts have found it necessary to admit them cautiously, under somewhat stringent rules, to prevent the endless mischief which a different course would undoubtedly produce. Chrisco v. Yow, 153 N.C. 434, 69 S.E. 422; Vernon v. Hankey, 2 T. R. (Eng.) 120; State v. Carr, 21 N.H. 166, 53 Am. Dec., 179; Linscott v. Orient Ins. Co., 88 Me. 497, 34 A. 405, 51 Am. St. Rep. 435; State v. Stain, 82 Me. 472, 20 A. 72; Commonwealth v. Sacco and Vanzetti, 259 Mass. 128, 156 N.E. 57; Davis v. Boston Elevated Ry., 235 Mass. 482, at page 495, 126 N.E. 841; Baylies' Trial Practice, 507; 20 R. C. L. 289.

The applicant in all cases, civil as well as criminal, has the laboring oar to rebut the presumption that the verdict is correct and that he has not exercised due diligence in preparing for trial. Brown v. Sheets, 197 N.C. 268, 148 S.E. 233, 63 A. L. R. 1357; Brown v. Town of Hillsboro, 185 N.C. 368, 117 S.E. 41; Johnson v. R. R., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598. In other words, laches must be negatived and probable or manifest injustice shown. Alexander v. Cedar Works, 177 N.C. 536, 98 S.E. 780; Wilkie v. R. R., 127 N.C. 203, 37 S.E. 204; Carson v. Dellinger, 90 N.C. 226.

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. Lex reprobat moram. Battle v. Mercer, 188 N.C. 116, 123 S.E. 258.

As prerequisites, therefore, to the granting of new trials on the ground of newly discovered evidence, it is settled by the decisions in this jurisdiction that it must appear by affidavit:

(1) That the witness or witnesses will give the newly discovered evidence. Brown v. Town of Hillsboro, supra; Aden v. Doub, 146 N.C. 10, 59 S.E. 162; Dupree v. Ins. Co., 93 N.C. 237; Holmes v. Godwin, 69 N.C. 467.

(2) That such newly discovered evidence is probably true. Brown v. Town of Hillsboro, supra; Mottu v. Davis, 153 N.C. 160, 69 S.E. 63; Aden v. Doub, supra.

(3) That it is competent, material, and relevant. Brown v. Sheets, supra; Brown v. Town of Hillsboro, supra; Henry v. Smith, 78 N.C. 27.

(4) That due diligence and proper means were used and employed to procure the testimony at the trial. Brown v. Sheets, supra; Everett v. Sneed, 186 N.C. 766, 119 S.E. 5; Brown v. Town of Hillsboro, supra; Alexander v. Cedar Works, supra; Chrisco v. Yow, 153 N.C. 434, 69 S.E. 422; Shehan v. Malone, 72 N.C. 59; Bledsoe v. Nixon, 69 N.C. 82.

(5) That the newly discovered evidence is not merely cumulative. Brown v. Sheets, supra; Scales v. Wall, 194 N.C. 804, 140 S.E. 80; Coleman v. McCullough, 190 N.C. 590, 130 S.E. 508; Brown v. Town of Hillsboro, supra; Alexander v. Cedar Works, supra; Chrisco v. Yow, supra; State v. De Graff, supra; Green River Land Co. v. Bostic, 168 N.C. 99, 83 S.E. 747; State v. Starnes, 97 N.C. 423, 2 S.E. 447; Simmons v. Mann, 92 N.C. 12.

(6) That it does not tend only to contradict a former witness or to impeach or discredit him. Hilton v. Ins. Co., 195 N.C. 874, 142 S.E. 782; Young v. Stewart, 191 N.C. 297, 131 S.E. 735; Brown v. Town of Hillsboro, supra; Green River Land Co. v. Bostic, supra; Turner v. Davis, supra; State v. De Graff, supra; Brown v. Mitchell, 102 N.C. 347, 9 S.E. 702, 11 Am. St. Rep. 748; Sikes v. Parker, 95 N.C. 232.

(7) That it is of such a nature as to show that on another trial a...

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