#### STATE v. J. B. ARTHUR.

(Filed 13 October, 1909.)

1. Indictment — Proof—Evidence—Variance.

There is no fatal variance between tbe allegation of a bill of indictment and tbe proof, tbe former charging tbe burning of “a certain shop and storehouse,” giving its ownership and its occupancy as “used in the trade of woodworking by H.,” and the latter tending to show that defendant was seen to set fire to the “H. workshop.”

2. Criminal Cases — Supreme Court — Newly-Discovered Evidence— Power of Court.

A new trial in criminal cases will not be granted by the Supreme Court upon the grounds of newly discovered evidence.

Walker, J., concurs in result.

Appeal by defendant from Goolce, J., June Term, 1909, of Oaeteeet.

Indictment for bouse burning.

Tbe defendant was convicted, and from tbe sentence of tbe court appealed.

The facts are sufficiently stated in tbe opinion.

Attorney-General for tbe State.

Ay code & Winston for defendant.

*654BkowN, J.

1. The defendant was indicted for burning a “certain shop and storehouse, the property of one O. S. Wallace, occupied by one W. A. Howland and used in the trade of woodworking.” The evidence in regard to the bouse is that tbe defendant was seen to set fire to “Howland’s workshop. It was right under the side of the shop, under a tank of gasoline used for running the machinery in the shop. The house belonged to C. S. Wallace and was used by Howland for operating some working machinery.”

The defendant was convicted, and brings the case to this Court upon the one exception, that there was a fatal variance between the allegation in the bill and the proof.

The witness Mann, who testified to seeing defendant set the building on fire, repeatedly called it “a shop,” and we think it is properly so charged in the bill. The whole evidence tends to bring the structure within the description of a shop, as given in State v. Morgan, 98 N. C., 643.

2. The defendant files a petition for a new trial, on the ground of newly discovered evidence.

We have not been cited to any ease in this country where a new trial has been allowed in criminal cases by an appellate court upon the ground of newly discovered evidence, and it is not allowed in Great Britain. • If such practice prevailed, the proper administration. of the criminal law in which our entire people are interested, would be seriously impaired and t.hé delays incident-to it greatly increased.

The ease with which evidence would be “newly discovered” would give the accused, when convicted, too great an opportunity to postpone the sentence of the law almost indefinitely.

The State would, of necessity, be denied the right to ask for a new trial, for similar reasons, for when the accused is acquitted no new trial may 'be granted for any reason, whatever. The Superior Court judge cannot even award a new trial to the State, and the right of appeal upon its part is extremely limited, and never lies after a general verdict of not guilty. The Superior Court judge may grant a new trial to the accused during the term, and his discretion is irreviewable. '

And if the accused is finally convicted and sentenced, he may still apply to the Governor for executive clemency.

This question is fully discussed and all the authorities cited in the well-considered opinion of the Chief Justice in State v. Lilliston, 141 N. C., 863. The soundest considerations of public policy require that we adhere to that decision, founded as it is *655in tbe wisdom of our forefathers. We are more firmly convinced of tbe wisdom of our former judgment wben we examine tbe newly discovered evidence set out by this defendant, wbieb is mainly intended to contradict a State witness. Witb reasonable diligence it could bave been presented either on tbe trial or to tbe presiding judge before be adjourned tbe term.

Tbe judgment of tbe Superior Court is

Affirmed.

Walker, J.,

concurring in.result: While I concur witb my brethren that there was no error in law committed in tbe trial of this case, it is impossible for me to agree witb them that we cannot consider tbe motion (or petition) of tbe defendant for a new trial upon the ground of newly discovered testimony. It seems to me that such a ruling not only violates tbe cardinal rule of tbe common law, but nullifies an express enactment of tbe Legislature upon tbe subject. It is provided by statute (Eevisal, sec. 3272) that “tbe court may grant new trials in criminal cases wben tbe defendant is found guilty, under tbe same rules and regulations as in civil cases.” Tbe power and authority under tbe Constitution and tbe statute to grant new trials is identical in both classes of cases. It has been tbe undeviating course and practice of this Court to grant new trials in civil cases for newly discovered evidence. Whence comes this power? It is suggested in some of tbe cases that this power arises from necessity, but necessity cannot supply constitutional and statutory omissions. Tbe .power must be found either in tbe Constitution or in tbe statute passed in pursuance of tbe Constitution; and if it cannot be found there, then it does not exist. , But at this late day no one will be bold enough to say that tbe power does not exist to grant new trials for newly discovered evidence by this Court in civil cases; and if tbe power does exist in civil cases, then no ingenuity can show why it does not exist in criminal cases. Tbe attempt to show it has been repeatedly made; but, witb all possible deference to tbe Court, and certainly witb entire respect, both for.its learning and its facility of expression, it is not too much to say that no opinion yet has been written' which has satisfied or can satisfy me and, I may safely say, tbe profession that a real distinction can be drawn between tbe power to grant new trials in civil cases and tbe power to do tbe same thing in criminal cases.

In State v. Lilliston, 141 N. C., 866, tbe Chief Justice, in construing section 3272, construes tbe words, “wben be is found guilty,” to relate to tbe time — that is, of tbe court, to-wit, tbe *656Superior Court — in which the defendant is found guilty. It seems manifest to us that this is not the correct construction of 'this statute — -“the courts may grant new trials in criminal cases when the defendant is found guilty, under the same rules and regulations as in civil cases.” “When he is found guilty” is the same as if it had been written “if he is found guilty,” the purpose being not to authorize the granting of a new trial against the defendant, but one for him.

It is perfectly clear that the adverb “when” was used in the sense of the conjunction “if,” meaning, of course, “in case that; granting, allowing or supposing that; introducing a condition or supposition,” and not as referring to the time when a verdict is returned by the jury. If the latter-be the true meaning of the term, how comes it that the Court has the power to grant a new trial for “newly discovered testimony” in civil cases? For the same word, “when,” is, used in the statute conferring the power in that class of cases, and the right to move for a new trial is restricted to the time “when” the trial occurred, and the statute expressly and specifically states the grounds upon which a new trial may be ordered in civil cases. We have held that the failure to make the motion during the term, for the cases set forth in the statute, is fatal, and yet wé will entertain a motion in this Court, when we have acquired jurisdiction by the appeal, to set aside the verdict and grant a new trial for “newly discovered testimony.”

I adhere to the opinion expressed by Justice Connor in State v. Lilliston, 141 N. C., 866, in which I concurred at the time of the decision of that case, and in State v. Turner, 143 N. C., 641. In the former case Justice Connor very tersely and forcefully said: “I have never been able to understand why, if this Court has power to grant a new trial for newly discovered evidence in a case involving property of ever so small value, it has not like power where the liberty and life of the citizen is involved. . . . It is one of those questions which, to my mind, will only be settled when reasons more cogent than any yet advanced are found to sustain the conclusion of the Court.” In the latter case his language is not less worthy of serious consideration: “The cases in which the motion has been made were reviewed in Lilliston’s case. I confess that, after examining them, I am unable to see cn* understand wherein the distinction is found which permits and, upon this record, would make it our duty to grant this defendant a new trial if she had been cast in a civil action involving the title to a tract.of land or personal property of an insignificant value, but denies the power to do so when she stands *657convicted of a crime followed by a sentence of imprisonment at bard labor for life. 'It is not claimed that any statute confers tbe power in one case and withholds it in another. The Constitution confers the jurisdiction to hear and determine civil and criminal appeals in exactly the same terms.” Justice Connor and I agreed in our views upon this question when those cases were decided, and no reason or argument of sufficient force has since been advanced to change my opinion. This question was presented in State v. Starnes, 94 N. C., 973, but the Court did not consider it upon principle and authority, but disposed of it adversely to the defendant, solely upon the ground that no precedent could be found in the decisions of this Court for such procedure. It did not require any precedent, because the “reason of the thing” and the perfect analogy between civil and criminal eases in this respect — not to say anything about the express words of the statute — were all sufficient to sustain a contrary ruling. When the question first arose, the Court seemed impressed by the fact that the question had not heretofore been raised, and concluded, because not raised, that it did not exist. If this Court will adopt the same process of reasoning, the constancy with which, notwithstanding adverse decisions, the question is now raised, will show that the decisions do not satisfy the professional mind. In State v. Council, 129 N. C., 511, Justice Douglas stated his view of the law with his accustomed clearness and vigor: “Knowing that rehearings are constantly granted in civil cases, and finding no distinction between civil and criminal actions, either in the statute or the rules of this Court, I am unwilling to say, even by implication, that property is more valuable than life and liberty, or entitled to a greater degree of protection.” We find that the best text writers upon this subject sustain the position taken by Justices Connor, Douglas and myself in former dissents. In 3 Graham & Waterman on New Trials, p. 227, the reasons for granting new trials in criminal cases are said to be more cogent than those which apply to civil cases. I quote from that standard text book as follows: “We cannot see any valid reason for interfering with the verdict in civil cases that would not apply with still. greater force to criminal trials. The latter are certainly the more important, affecting, as they do, personal liberty, character and, perhaps, life. The sole object in interfering with the verdict in any case is the prevention of injustice. As the hazards of pecuniary loss are proportionately of less consequence than the loss of reputa*658tion, liberty 'or life, so greater scrutiny and greater latitude in granting a new trial should be allowed in the latter than in the former.”

It is stated in the opinion of the Court that no case in Great Britain or in this country, in which a new trial had been allowed for newly discovered testimony, had been cited. If it is meant by this to imply that no such case can be found, I must respectfully .differ from the majority. Indeed, the large majority of the cases relating to this question either hold that a new trial will be granted in criminal cases when the new evidence is of the kind required in civil cases, and the use of proper diligence to discover it has been shown, or recognize that as being the correct rule of law applicable to both civil and criminal cases. They will be found collated in 15 Cent. Digest, p. 142 and sec. 2306. Only one of the courts in the other States seems to decide the other way, and this is the Supreme Court of Iowa. I do not mean to assert this as a fact, but it is true, so far as my researches have enabled me to determine how the matter has been treated in other jurisdictions. In England, I believe, it is regulated by statute, and the decisions in Iowa are based upon statutory grounds. The rule has been held to apply not. only to criminal, but even to cajiital cases. 1 G. & "W". on New Trials, 481.

I have not attempted to state with any degree of fullness the reasons which should induce the Court to adopt the same rule in both classes of cases — civil and criminal — for I am satisfied with what has been so well said by our former associate, Justice Connor, in the two cases already cited.

In this case I concur in the result because I do not think the defendant has made a sufficient showing of diligence on his part fo discover the alleged new proof, even if it is so decisive in its character as to produce the belief in.our minds that on another trial it would probably change the result. Perhaps it would do so, but it would seem that the discrepancy or contradiction in the two statements of the principal witness as to the burning of the shop could have been discovered and exposed during the trial of the case. Surely there must have been some witness present or attainable who knew how the building was constructed, and it does not sufficiently appear that if there was not such a witness an examination of the shop after the witness had testified could not have been made in time to have produced evidence of the inconsistent statements at the trial, or at least in time to have presented the matter to the court below. Moore v. Gulley, 144 N. C., 81; G. & W. on New Trials, p. 1027.

*659The grounds upon which such a motion will be granted are well stated in Baylies on New Trials and Appeals, at p. 524, with a full citation of the authorities. Tested by what is there said, I do not think the defendant has brought his case within the rule applicable to such motions.