State v. Todd

• Decision Date: 13 December 1944
• Docket Number: 653
• Citation: 32 S.E.2d 313,224 N.C. 776
• Parties: STATE v. TODD
• Court: North Carolina Supreme Court

32 S.E.2d 313

224 N.C. 776

STATE v. TODD

No. 653

Supreme Court of North Carolina

December 13, 1944

At the January Criminal Term, 1944, Cumberland Superior Court the defendant was tried upon indictment charging him with the murder of one James L. Faison, which resulted in a conviction of murder in the second degree and sentence. No error was found on appeal at the Spring Term, 1944, opinion filed 24 May, 1944, and reported in 224 N.C. 358, 30 S.E.2d 157.

At the next succeeding term of Cumberland Superior Court (June Term) following affirmance of the judgment on appeal, the defendant filed motion for new trial on the ground of newly-discovered evidence. Due to illness of the defendant and on motion of his counsel, the motion was set over to the next succeeding criminal term for hearing.

The motion then came on for hearing at the August Criminal Term 1944, Cumberland Superior Court, and judgment was entered allowing the motion and ordering a new trial.

From this order, the State appeals, alleging want of sufficient showing of 'newly discovered evidence,' as that phrase is defined in the law (State v. Casey, 201 N.C. 620, 161 S.E. 81), to invoke the discretionary ruling in favor of the defendant (Stilley v. Goldsboro Planing Mills, 161 N.C. 517, 77 S.E. 760).

The State also files motion for certiorari.

Harry McMullan, Atty. Gen., and Hughes J. Rhodes and Ralph Moody Asst. Attys. Gen., for the State, appellant.

Oates Quillin & MacRae, of Fayetteville, for defendant, appellee.

STACY Chief Justice.

The State contends that under the showing made, Crane v. Carswell, 204 N.C. 571, 169 S.E. 160, and at the time of the hearing, Riddle v. Honbarrier, 212 N.C. 528, 193 S.E. 721, the Superior Court was without authority to entertain the motion or to grant the relief sought. The defendant contends otherwise. State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Casey, supra.

However this may be, we are precluded from passing upon the merits of the matter, because the State has no right of appeal in the circumstances disclosed by the record. State v. McCollum, 216 N.C. 737, 6 S.E.2d 503; State v. Lea, 203 N.C. 316, 166 S.E. 292. It is provided by G.S. s 15-179 that an appeal to this Court may be taken by the State in four specific instances, naming them, 'and no other.' State v. Branner, 149 N.C. 559, 63 S.E. 169. Admittedly, the present case falls within the 'and no other' of the statute, albeit the State seeks to present only a question of law.

We have then a matter which comes within the inhibition of the statute, rather than within its grant. A similar situation arose in the case of State v. Davidson, 1899, 124 N.C. 839, 32 S.E. 957, where it was said that perhaps instances involving only questions of law were omitted from the statute by inadvertence, but the statute is the same today as it was then. 'A judicial inquiry is one which investigates, declares, and carries out existing law. ' Brown, J., in Hudson v. McArthur, 152 N.C. 445, loc. cit. 454, 67 S.E. 995, 999, 28 L.R.A., N.S., 115.

Nor is the situation saved by the application for certiorari. State v. Swepson To bring up the matter in this way would be to accomplish by...