State v. Arthur

• Citation: 65 S.E. 758,151 N.C. 653
• Parties: STATE v. ARTHUR.
• Decision Date: 13 October 1909
• Court: North Carolina Supreme Court

65 S.E. 758

151 N.C. 653

STATE v. ARTHUR.

Supreme Court of North Carolina

October 13, 1909

Appeal from Superior Court, Carteret County; Cooke, Judge.

J. B Arthur was convicted of arson, and appeals. Affirmed.

New trial for newly discovered evidence in criminal prosecution cannot be granted by appellate court.

Aycock & Winston, for appellant.

The Attorney General, for the State.

BROWN J.

1. The defendant was indicted for burning a "certain shop and storehouse, the property of one C. S. Wallace, occupied by one W. A. Howland and used in the trade of woodworking." The evidence in regard the house is that the defendant was seen to set fire to "Howland's workshop. It was right under the side of the shop, under a tank of gasoline used for running the machinery in the shop. The house belonged to C. S. Wallace, and was used by Howland for operating some working machinery." The defendant was convicted, and brings the case to this court, upon the one exception that there was a fatal variance between the allegation in the bill and the proof. The witness Mann, who testified to seeing defendant set the building on fire repeatedly called it "a shop," and we think it is properly so charged in the bill. The whole evidence tends to bring the structure within the description of a shop as given in State v. Morgan, 98 N.C. 643, 3 S.E. 927.

2. The defendant files a petition for a new trial on the ground of newly discovered evidence. We have not been cited to any case in this country where a new trial has been allowed in criminal cases by an appellate court upon the ground of newly discovered evidence, and it is not allowed in Great Britain. If such practice prevailed, the proper administration of the criminal law, in which our entire people are interested, would be seriously impaired, and the delays incident to it greatly increased. The ease with which evidence would be "newly discovered" would give the accused, when convicted, too great an opportunity to postpone the sentence of the law almost indefinitely. The state would of necessity be denied the right to ask for a new trial for similar reasons; for, when the accused is acquitted, no new trial may be granted for any reason whatever. The superior court judge cannot award a new trial to the state, and the right of appeal upon its part is extremely limited, and never lies after a general verdict of not guilty. The superior court Judge may grant a new trial to the accused during the term, and his discretion is irreviewable. And if the accused is finally convicted and sentenced, he may still apply to the Governor for executive clemency. This question is fully discussed, and all the authorities cited, in the well-considered opinion of the Chief Justice in State v. Lilliston, 141 N.C. 863, 54 S.E. 427, 115 Am. St. Rep. 705. The soundest considerations of public policy require that we adhere to that decision, founded as it is in the wisdom of our forefathers. We are more firmly convinced of the wisdom of our formed judgment when we examine the newly discovered evidence set out by this defendant, which is mainly intended to contradict a state witness. With reasonable diligence it could have been presented either on the trial, or to the presiding judge before he adjourned the term.

The judgment of the superior court is affirmed.

WALKER J. (concurring in result).

While I concur with my Brethren that there was no error in law committed in the trial of this case, it is impossible for me to agree with them that we cannot consider the motion (or petition) of the defendant for a new trial, upon the ground of newly discovered testimony. It seems to me that such a ruling not only violates the cardinal rule of the common law, but nullifies an express enactment of the Legislature upon the subject. It is provided by statute (Revisal 1908, § 3272) that "the courts may grant new trials in criminal cases when the defendant is found guilty, under the same rules and regulations as in civil cases." The power and authority, under the Constitution and the statute, to grant new trials is identical in both classes of cases. It has been the undeviating course and practice of this court to grant new trials in civil cases for newly discovered evidence. Whence comes this power? It is suggested in some of the cases that this power arises from necessity, but necessity cannot supply constitutional and statutory omissions. The power must be found either in the Constitution, or in the statute passed in pursuance of the Constitution; and, if it cannot be found there, then it does not exist. But at this late day no one will be bold enough to say that the power does not exist to grant new trials for newly discovered evidence by this court in civil cases; and, if the power does exist in civil cases, then no ingenuity can show why it does not exist in criminal cases. The attempt to show it has been repeatedly made, but with all possible deference to the court, and certainly with entire respect both for its learning and its facility of expression, it is not too much to say that no opinion yet has been written which has satisfied, or can satisfy, me, and, I may safely say, the profession, that a real distinction can be drawn between the power to grant new trials in civil cases and the power to do the same thing in criminal cases.

In State v. Lilliston, 141 N.C. 866, 54 S.E. 427, 115 Am. St. Rep. 705, the Chief Justice, in construing section 3272, construes the words "when he is found guilty" to relate to the time--that is, of the court, to wit, the superior court--in which the defendant is found guilty. It seems manifest to me that this is not the correct construction of the statute: "The courts may grant new trials in criminal cases when the defendant is found guilty under the same rules and regulations as in civil cases." "When he is found guilty" is the same as if it had been written "if he is found guilty," the purpose being not to authorize the granting of a new trial against the defendant, but one for him. It is perfectly clear that the adverb "when" was used in the sense of the conjunction "if," meaning, of course: "In case that; granting, allowing or supposing that; introducing a condition or supposition"--and not as referring to the time when a verdict is returned by the jury. If the latter be the true meaning of the term, how comes it that the court has the power to grant a new trial for "newly discovered testimony" in civil cases, for...