after stating tbe case: Tbe appeal calls for a ruling upon an important question of practice: "When may tbe courts entertain a motion in a criminal case for a new trial on tbe grounds of information affecting tbe competency of jurors, and for newly discovered evidence, wbicb come to tbe attention of tbe defendant after trial and conviction ?
Undoubtedly, if knowledge of tbe matters and things, now urged as grounds for a new trial, bad come to tbe movant during tbe term of court at wbicb be was tried and convicted, tbe judge at tbat term, tbe trial term, would bave been clotbed witb tbe power, as well as tbe duty, to bear and determine tbe motion upon its merits. S. v. Jackson, 199 N. C., 321, 154 S. E., 402; S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629; S. v. Trull, 169 N. C., 363, 85 S. E., 133; S. v. Jimmerson, 118 N. C., 1173, 24 S. E., 494; S. v. Fuller, 114 N. C., 885, 19 S. E., 797; S. v. DeGraff, 113 N. C., 689, 18 S. E., 507; S. v. Morris, 109 N. C., 820, 13 S. E., 877; Turner v. Davis, 132 N. C., 187, 43 S. E., 637. And unless some question of law or legal inference were involved in bis ruling, it would not be subject to review on appeal. S. v. DeGraff, supra; Fleming v. R. R., 168 N. C., 248, 84 S. E., 270; Munden v. Casey, 93 N. C., 97.
It is tbe ruling in a number of cases tbat wben tbe matter, or new evidence, is discovered during the term, tbe motion must be made to tbe court tbat tried the cause, and its ruling thereon, whether for or against a new trial, is ordinarily conclusive. Turner v. Davis, supra; Redmond v. Stepp, 100 N. C., 212; Carter v. King, 174 N. C., 549, 94 S. E., 4.
Indeed, unless tbe case is kept alive by appeal, such motion can be entertained only at tbe trial term. Lancaster v. Bland, 168 N. C., 377, 84 S. E., 529; Stilley v. Planing Mills, 161 N. C., 517, 77 S. E., 760; S. v. Bennett, 93 N. C., 503.
Both tbe trial and appellate courts bave exercised tbe right to grant new trials for newly discovered evidence in civil cases, and tbe rules governing such applications, in cases appearing on tbe civil side of tbe docket, are well established by a number of decisions. But on account of tbe abuse to which such applications are susceptible, tbe courts bave found it necessary to admit them cautiously, under somewhat stringent rules, to prevent tbe endless mischief wbicb a different course would undoubtedly produce. Chrisco v. Yow, 153 N. C., 434, 69 S. E., 422; Vernon v. Hankey, 2 T. R. (Eng.), 120; S. v. Carr, 21 N. H., 166, 53 Am. Dec., 179; Linscott v. Orient Ins. Co., 88 Me., 497, 51 Am. St. Rep., 435; S. v. Stain, 82 Me., 472; Commonwealth v. Sacco and Vanzetti, 259 Mass., 128; Davis v. Boston Elevated Ry., 235 Mass., 482 at p. 495; Baylies’ Trial Practice, 507; 20 R. C. L., 289.
*624Tbe applicant in all cases, civil as well as criminal, bas tbe laboring-oar to rebut tbe presumption tbat tbe verdict is correct and tbat be bas not exercised due diligence in preparing for trial. Brown v. Sheets, 197 N. C., 268, 148 S. E., 233; Brown v. Hillsboro, 185 N. C., 368, 117 S. E., 41; Johnson v. R. R., 163 N. C., 431, 79 S. E., 690. In other words, lacbes must be negatived and probable or manifest injustice shown. Alexander v. Cedar Works, 177 N. C., 536, 98 S. E., 780; Wilkie v. R. R., 127 N. C., 203, 37 S. E., 204; Carson v. Dellinger, 90 N. C., 226. To do justly is tbe goal of tbe courts in every case, but this does not mean to favor tbe negligent at tbe expense of tbe diligent party. He who sleeps upon bis rights may lose them. Lex reprobat moram. Battle v. Mercer, 188 N. C., 116, 123 S. E., 258.
As prerequisites, therefore, to tbe granting of new trials on tbe ground of newly discovered evidence, it is settled by tbe decisions in this jurisdiction tbat it must appear by affidavit:
1. Tbat tbe witness or witnesses will give tbe newly discovered evidenee. Brown v. Hillsboro, supra; Aden v. Doub, 146 N. C., 10, 59 S. E., 162; Dupree v. Ins. Co., 93 N. C., 237; Holmes v. Godwin, 69 N. C., 467.
2. Tbat such newly discovered evidence is probably true. Brown v. Hillsboro, supra; Mottu v. Davis, 153 N. C., 160, 69 S. E., 63; Aden v. Doub, supra.
3. Tbat it is competent, material and relevant. Brown v. Sheets,, supra; Brown v. Hillsboro, supra; Henry v. Smith, 78 N. C., 27.
4. Tbat due diligence was used and proper means were employed tO' procure tbe testimony at tbe trial. Brown v. Sheets, supra; Everett v. Sneed, 186 N. C., 766, 119 S. E., 5; Brown v. Hillsboro, supra; Alexander v. Cedar Works, supra; Chrisco v. Yow, 153 N. C., 434, 69 S. E., 422; Shehan v. Malone, 72 N. C., 59; Bledsoe v. Nixon, 69 N. C., 82.
5. Tbat tbe newly discovered evidence is not merely cumulative. Brown v. Sheets, supra; Scales v. Wall, 194 N. C., 804, 140 S. E., 80;. Coleman v. McCullough, 190 N. C., 590, 130 S. E., 508; Brown v. Hillsboro, supra; Alexander v. Cedar Works, supra; Chrisco v. Towr supra; S. v. DeGraff, supra; Land Co. v. Bostic, 168 N. C., 99, 83 S. E., 747; S. v. Starnes, 97 N. C., 423, 2 S. E., 447; Simmons v. Mann, 92 N. C., 12.
6. Tbat it does not tend only to contradict a former witness or to impeach or discredit him. Hilton v. Ins. Co., 195 N. C., 874, 142 S. E., 782; Young v. Stewart, 191 N. C., 297, 131 S. E., 735; Brown v. Hillsboro, supra; Land Co. v. Bostic, supra; Turner v. Davis, supra; S. v. DeGraff; supra; Brown v. Mitchell, 102 N. C., 347, 9 S. E., 702; Sikes v. Parker, 95 N. C., 232.
*6257. That it is of such, a nature as to show that on another trial a different result will probably be reached and that the right will prevail. Brown v. Sheets, supra; Brown v. Hillsboro, supra; Alexander v. Cedar Works, supra; Mottu v. Davis, supra; Simmons v. Mann, supra; Carson v. Ins. Co., 165 N. C., 135, 80 S. E., 1080; Warwick v. Taylor, 163 N. C., 68, 79 S. E., 286.
In civil cases, when the matter, or newly discovered evidence, comes to the attention of the applicant after the adjournment of the term of court at which the case was tried, and pending the appeal, the motion should be made in the Supreme Court. Moore v. Tidwell, 194 N. C., 186, 138 S. E., 541; In re Edens, 182 N. C., 398, 109 S. E., 269; Allen v. Gooding, 174 N. C., 271, 93 S. E., 740. If discovered after filing of the opinion in the Supreme Court, and before it is certified down, a petition to rehear should be filed for the purpose of making the motion here. Allen v. Gooding, supra; Shehan v. Malone, 72 N. C., 59. Compare Fleming v. Barden, 127 N. C., 214, 37 S. E., 219. But when the judgment of the Superior Court has been affirmed and the opinion certified down, and the matter finally disposed of here, the motion (or action in the nature of a bill of review, as' was resorted to in Matthews v. Joyce, 85 N. C., 258) should be made or begun in the Superior Court at the next succeeding term. Allen v. Gooding, supra; Black v. Black, 111 N. C., 300, 16 S. E., 412; Smith v. Moore, 150 N. C., 158, 63 S. E., 735; Banking Co. v. Morehead, 126 N. C., 279, 35 S. E., 593.
Notwithstanding the establishment of the above rules as applicable to civil cases, and 0. S., 4644, which provides that “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,” nevertheless, in view of Art. IY, sec. 8, of the Constitution which empowers the Supreme Court “to review on appeal any decision of the courts below, upon any matter of law or legal inference,” it is the practice with us, established by a long line of decisions, that new trials will not be awarded by the Supreme Court for newly discovered evidence in criminal prosecutions. S. v. Griffin, 190 N. C., 133, 129 S. E., 410; S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629; S. v. Williams, 185 N. C., 643, 116 S. E., 570; S. v. Jenkins, 182 N. C., 818, 108 S. E., 767; S. v. Ice Co., 166 N. C., 403,. 81 S. E., 956; S. v. Arthur, 151 N. C., 653, 65 S. E., 758; S. v. Turner, 143 N. C., 641, 57 S. E., 158; S. v. Lilliston, 141 N. C., 857, 54 S. E., 427; S. v. Register, 133 N. C., 746, 46 S. E., 21; S. v. Edwards, 126 N. C., 1051, 35 S. E., 540; S. v. Rowe, 98 N. C., 629, 4 S. E., 506; S. v. Starnes, 94 N. C., 973.
*626It is said ill some of tbe cases that by reason of tbe language in tbe above section of tbe Constitution tbe jurisdiction of tbe Supreme Court in criminal prosecutions is limited to matters of law or legal inference, and that it does not extend to applications for new trials on tbe ground of newly discovered evidence. S. v. Lilliston, supra; S. v. Turner, supra; S. v. Arthur, supra. Tbe decision in each of these cases, however, was by a divided Court. For like reason, petitions to rehear are not allowed in criminal cases. S. v. Council, 129 N. C., 511, 39 S. E., 814; S. v. Jones, 69 N. C., 16.
Tbe case of S. v. Starnes, 94 N. C., 973, and 97 N. C., 423, in which tbe defendant was convicted of rape and sentenced to death, is essentially jiarallel to tbe one at bar. There, as here, application was made in tbe Supreme Court for a new trial on tbe ground of newly discovered evidence, which came to tbe attention of tbe applicant after bis conviction in tbe Superior Court and pending tbe apqteal. This was denied as a matter of procedure without passing upon its merits. S. v. Hartsfield, supra; S. v. Turner, supra. At tbe next succeeding term of Union Superior Court, following affirmance of tbe judgment here, when tbe prisoner was called for resentence, as was tbe practice at that time, and inquiry made of him if be bad aught to say why judgment of death should not be pronounced against him, be renewed bis application for a new trial upon tbe same ground of newly discovered evidence, supporting bis motion by a number of affidavits. Tbe motion was entertained, but denied for insufficient showing, and on appeal it was said: “While in this case, tbe judge puts bis refusal upon tbe ground that tbe case made does not come up to tbe rule in one essential particular, be does not abnegate tbe power to make tbe order when all its requirements are met, and this in tbe pending application, and there is no error in law in bis ruling.”
Rut it is questioned whether tbe decision in Starnes’ case, rendered in 1886, is controlling at tbe present time in view of chapters 191 and 192, Laws 1887, now 0. S., 657 and 4654, which provide that in all cases, civil and criminal actions alike, an appeal shall not be construed to vacate tbe judgment, and 0. S., 4663, as amended by chapter 55, Public Laws 1925, which provides that on appeal in capital cases, should no error be found in tbe trial, tbe condemned person shall be executed on tbe third Friday after filing of tbe opinion, and tbe clerk of tbe Supreme Court is required to notify tbe warden of tbe penitentiary of tbe date of such filing, no resentence of tbe prisoner in tbe Superior Court being-contemplated in such cases. But tbe judgment to be executed is tbe judgment of tbe Superior Court, which was not vacated by tbe appeal.
It will be observed that 0. S., 4663, as amended, deals only with tbe fixing of tbe new date of execution, when for any cause a stay of execu*627tion bas been granted or brought about by operation of law (C. S., 4662), while the third proviso' of C. S., 1412 is to the effect that in criminal cases the decision of the Supreme Court shall be certified to the Superior Court from which the case was transmitted, which Superior Court shall proceed to judgment agreeably to the decision of the Supreme Court and the laws of the State. Indeed, O. S., 4661 provides that after the execution of a death sentence, that fact shall be certified to the clerk of the Superior Court in which the sentence was pronounced and the certificate made a part of the papers in the case and entered upon the records.
In all criminal cases, other than capital, where the judgment is affirmed on appeal, it is provided by 0. S., 4656, that the clerk of the Superior Court, on receipt of the certificate of the opinion of the Supreme Court, shall forthwith notify the sheriff, who is thereupon directed to proceed with the execution of the sentence. In such cases, however, it has been the practice on the circuit for the Superior Courts to entertain motions for new trials on the ground of newly discovered evidence at the next succeeding term following affirmance of the judgment on appeal. The most recent instance of such practice, coming to our attention, occurred in the case of S. v. Cox and Whitley, ante, 357, affirmed on appeal at the present term.
It is not supposed that the law in this respect is less mindful of the rights of a prisoner condemned to die, than it is of the rights of a defendant in a prosecution other than capital, or of the rights of a party in a civil action. S. v. Hartsfield, supra. “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amend. XIY, U. S. Const.
Construing the above statutes in the light of the decisions, and considering the circumstance that no execution of the sentence in the instant case had been entered upon at the time of the last motion, we are of opinion that the judge of the Superior Court to whom the application was addressed had the power and discretion to hear and to dispose of the matter. To hold otherwise would perhaps threaten the validity of C. S., 4663, as amended, by causing it to offend against the constitutional assurance of the equal protection of the laws (S. v. Fowler, 193 N. C., 290, 136 S. E., 709), and there is a presumption against an interpretation which renders an act unconstitutional. Green v. Asheville, 199 N. C., 516, 154 S. E., 852; Tob. Asso. v. Bland, 187 N. C., 356, 121 S. E., 636. Where a statute is fairly susceptible of two interpretations, one constitutional and the other not, the rule of the courts is to adopt the former and reject the latter, for every presumption is to be indulged in favor of the validity of an act of the law-making body. S. v. Yarboro, 194 N. C., 498, 140 S. E., 216; S. v. Revis, 193 N. C., *628192, 136 S. E., 346; Sutton v. Phillips, 116 N. C., 502, 21 S. E., 968; McGwigan v. R. R., 95 N. C., 428; Comrs. v. Ballard, 69 N. C., 18; S. v. Manuel, 20 N. C., 144; Adkins v. Children's Hospital, 261 U. S., 525; St. Louis S. W. Ry. v. Ark., 235 U. S., 350; Abby Dodge v. U. S., 223 U. S., 166; U. S. v. Del. & Hud. Co., 213 U. S., 366; Bridgeport Irr. Dist. v. U. S., 40 Fed. (2d), 830; People v. City Prison, 144 N. Y., 529, 39 N. E., 686; 25 R. C. L., 1000.
Tbe authority which the applicant invokes is available in all other proceedings, both civil and criminal, up to and including the next succeeding term following affirmance of judgment on appeal, and it is difficult to perceive upon what basis of equality, or equal protection of the laws, it can be said that in capital cases — and in capital cases alone— the power of the judiciary to entertain such motions is exhausted with the adjournment of the trial term of court. S. v. Fowler, supra.
We are not called upon to say, nor do we decide, whether the statutes, as now written, leave an interstice or hiatus in the law, with respect to the jurisdiction of the Superior Court in capital eases after judgment of affirmance on appeal, as debated on argument and in brief. Suffice it to say, that, in the instant case, the door of the temple of justice has not been closed to the prisoner; he has been or is to be heard, and, in this respect, he is in no position to complain.
It is clear, we think, that the application for a new trial on the ground of newly discovered evidence was denied, not upon its merits, but under the misapprehension that the court was without authority to entertain the application. Where the exercise of a discretion is refused upon the ground that the court is without jurisdiction in the premises, the ruling is reviewable. Gilchrist v. Kitchen, 86 N. C., 20; Hudgins v. White, 65 N. C., 393.
“It is familiar learning that where a nisi prius judge rests his refusal to exercise his discretion upon the mistaken opinion, either that it is not vested in him or that the facts are not such as to call for its exercise, it is error. The rule is so established, because a judge, acting under a misapprehension of the law, might, in cases like that before us, refuse to follow the dictates of a sound discretion solely because he had been misled by an erroneous view as to his power” — Avery, J., in S. v. Fuller, supra.
We express no opinion upon the merits of the matter. The motion will be passed upon by the judge of the Superior Court, to whose discretion it is committed (S. v. Morris, supra), and to that end the same is remanded to the Superior Court of Lenoir County.
Error and remanded.
Adams, J.,'dissents.