State v. Cox

• Decision Date: 16 March 1932
• Docket Number: 159.
• Citation: 162 S.E. 907,202 N.C. 378
• Parties: STATE v. COX et al.
• Court: North Carolina Supreme Court

162 S.E. 907

202 N.C. 378

STATE v. COX et al.

No. 159.

Supreme Court of North Carolina

March 16, 1932

Appeal from Superior Court, Pitt County; Sinclair, Judge.

Rodman Cox and Elmer Whitley were convicted of highway robbery, and on appeal, the judgment was affirmed. From subsequent order of trial court setting aside judgment and granting defendants a new trial, the State appeals.

Dismissed.

On appeal by state in criminal case, questions presented are limited to those discussed in appellant's brief.

This action was heard at November term, 1931, of the superior court of Pitt county, on the motion of the defendants that the judgment and verdict therein at April term, 1931, of said court, be set aside, and that defendants be granted a new trial on the ground of newly discovered evidence. The motion was allowed.

From the order of the judge setting aside the judgment and verdict in the action at April term, 1931, and granting the defendants a new trial, the state appealed to the Supreme Court.

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

Harding & Lee and Gaylord & Harrell, all of Greenville, for appellees.

CONNOR J.

The defendants in this action were tried at April term, 1931, of the superior court of Pitt county, on an indictment returned by the grand jury at said term, in which the defendants were charged with the crime of highway robbery. There was a verdict of guilty as to each defendant. From the judgment on the verdict that each defendant be confined in the state's prison for a term of not less than seven or more than nine years, both defendants appealed to the Supreme Court, assigning errors at the trial. Their appeal was heard at fall term, 1931, of this court. The assignments of error on said appeal were not sustained. The judgment was affirmed. See State v. Cox & Whitley, 201 N.C. 357, 160 S.E 358.

The November term, 1931, of the superior court of Pitt county was the first term of said court for the trial of criminal actions pending therein, held after the judgment of this court in defendants' appeal from the judgment of the superior court of Pitt county at April term, 1931, was certified to said court, as provided by statute, C. S. § 1417. At said term, the defendants, after notice to the solicitor for the state, moved that the judgment and verdict in the action at April term, 1931, be set aside, and that defendants be granted a new trial, on the ground of newly discovered evidence. In support of their motion, the defendants filed numerous affidavits from which it appeared, as they contended, that, since the trial of the action at April term, 1931, the defendants had discovered new evidence which was not available to them at the date of the trial, and which, if submitted to a jury, would probably result in a verdict of not guilty as to each defendant. These affidavits, together with affidavits filed by the solicitor for the state, who opposed the motion of the defendants on the ground that it appeared from the affidavits filed by the defendants that the new evidence which they had discovered was merely cumulative, and at most was only contradictory of the evidence offered by the state at the trial, were heard and duly...