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.