State v. Lipsey

BROCK, Judge. Defendant assigns as error that the trial judge denied his motion for dismissal at the close of the State’s evidence and again at the close of all the evidence. These assignments of error are without merit. The State offered the testimony of a witness who saw “Benjamin Lipsey [the defendant] jump up and come down with his hands and cut him [Officer White-sides] across the head and across the shoulder.” This testimony coupled with the testimony of the extent of the injury to the officer was clearly sufficient to require submission of the case to the jury upon the question as submitted. During the morning after the jury rendered its verdict of guilty, counsel for defendant made the following statement to the court: “. . . [L]ast night I was called and was informed that certain witnesses of whom I was not aware of at the time of trial of this case, knows who actually did the cutting of the officer and based on this newly discovered evidence that we be granted a new trial.” The trial judge then continued the matter until the next week of the term, and released defendant upon bond, for the stated purpose of giving counsel ample time to secure appropriate affidavits to support the motion for a new trial. The next week defendant’s counsel stated in open court that he and defendant had been unable to locate the witnesses. The record on appeal in this case is unnecessarily jumbled. Our rules require that proceedings shall be set forth in the order of the time in which they occurred. Rule 19 (a). For example, in this record the motions for nonsuit appear after the jury verdict; none of the motions, affidavits, orders, or judgment show the filing dates; an order for continuance dated 29 September 1971, follows a judgment dated 27 November 1971. We have called attention to the difficulty created for the appellate courts by misarrangement of the record on appeal and have pointed out that a simple chronological arrangement in accordance with our rules makes a study of the record on appeal more accurate. In State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29, we outlined the order for arrangement of a record on appeal in criminal cases. [249] Nevertheless, we have examined the affidavits which appear to have been intended to support defendant’s motion for a new trial and find them insufficient. In order to obtain a new trial upon the grounds of newly discovered evidence, “[t]he movant must negative laches and show that the newly discovered evidence is more than merely cumulative of or contradictory to the evidence adduced at the trial, and that such evidence is competent.” 3 Strong, N. C. Index 2d, Criminal Law, § 131. “Moreover, a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its refusal to grant the motion is not reviewable in the absence of abuse of discretion.” State v. Sherron, 6 N.C. App. 435, 170 S.E. 2d 70. No abuse of discretion is shown. No error. Judges Hedrick and Vaughn concur.