3 N.C. App. 223 | N.C. Ct. App. | 1968
The sole assignment of error brought forward in defendant’s brief is that the sentence imposed on defendant constituted cruel and unusual punishment.
In State v. Bruce, 268 N.C. 174, 150 S.E. 2d 216, in an opinion by Parker, C.J., we find the following:
“We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense. S. v. Stansbury, 230 N.C. 589, 55 S.E. 2d 185; S. v. Welch, 232 N.C. 77, 59 S.E. 2d 199; S. v. Whaley, 263 N.C. 824, 140 S.E. 2d 305; S. v. Stubbs, 266 N.C. 295, 145 S.E. 2d 899; S. v. Davis, 267 N.C. 126, 147 S.E. 2d 570."
The assignment of error is overruled.
In their brief, defendant’s counsel also state that additional evidence was brought to their attention after the trial session adjourned. They set forth as an exhibit what purports to be an affidavit of Dr. W. D. James stating that the deceased made certain statements favorable to defendant to Dr. James a short while before his death. Defendant’s brief concludes with the following: “* * * [T]he defendant prays for a dismissal of the judgment and sentence of the court below and that a new trial be granted.”
The procedure for moving for a new trial in a criminal action on the grounds of newly discovered evidence is well established in this jurisdiction. In State v. Edwards, 205 N.C. 661, 172 S.E. 399, in an opinion by Stacy, C.J., it is said:
* * [W]hen a case is tried in the Superior Court, and no appeal is taken from the judgment rendered therein, motion for new trial on the ground of newly discovered evidence may be entertained only at the trial term. (Citing authorities) But if the case is kept alive by appeal, such motion may be made, as*225 a dernier ressort, in the Superior Court at the next succeeding term following affirmance of the judgment on appeal. (Citing authorities).”
See also State v. Morrow, 262 N.C. 592, 138 S.E. 2d 245, and State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520.
For the reasons stated, the judgment of the superior court is
Affirmed.