#### STATE OF NORTH CAROLINA v. ROBERT RAY GORDON

No. 7217SC452

(Filed 28 June 1972)

1. Criminal Law § 148— newly discovered evidence — denial of new trial — appeal

Appeal does not lie from a refusal to grant a new trial for newly discovered evidence.

2. Criminal Law § 131— new trial for newly discovered evidence — denial — discretion

The trial court did not abuse its discretion in the denial of defendant’s motion for a new trial on the ground of newly discovered evidence.

Purported appeal by defendant, treated as petition for certiorari, from Crissman, Judge, 3 January 1972 Session of Superior Court held in SURRY County.

Defendant was arrested, tried, and convicted in January 1971 on charges of breaking and entering and larceny. He appealed and no error was found. (12 N.C. App. 38, 182 S.E. 2d 14). On 26 October 1971, defendant filed a petition for new trial based on newly discovered evidence. A hearing on the petition was conducted before Judge Crissman, who denied the relief sought. Defendant gave notice of appeal.

Attorney General Robert Morgcm by Associate Attorney Ralf F. Haskell for the State.

Carroll F. Gardner and Charles M. Neaves for defendant appellant.

VAUGHN, Judge.

[1, 2] 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 *242of 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.