State v. Gordon

15 N.C. App. 241 | N.C. Ct. App. | 1972

VAUGHN, Judge.

Defendant contends that the trial court erred in refusing to grant his petition for a new trial on the basis of newly discovered evidence. Appeal does not lie from a refusal to grant a new trial for newly discovered evidence. State v. Thomas, 227 N.C. 71, 40 S.E. 2d 412; 3 Strong, N.C. Index 2d, Criminal Law, § 148. We have, however, treated defendant’s appeal as a petition for certiorari, which is allowed. The granting of a new trial based on newly discovered evidence rests within the sound discretion of the trial court, and its ruling thereon is not reviewable in the absence of a showing of abuse of that discretion. State v. Williams, 244 N.C. 459, 94 S.E. 2d 374; State v. Blalock, 13 N.C. App. 711, 187 S.E. 2d 404. After having carefully reviewed the record in the case, we find no abuse of discretion. The order denying defendant’s petition is affirmed.

Affirmed.

Judges Morris and Graham concur.