dissenting: The evidence in this case was to the effect, which was believed by the jury, that I ames C. Causey, in charge of the logging operations, of the Atlas Plywood Corporation, of Goldsboro, N. C., on 3 July, 1930, was going through an isolated woodland section of Lenoir County, N. C. That he was driving a Hudson Coach, on a narrow road, about 12 o’clock noon, and met defendant Herman Casey, driving a truck. Both stopped facing each other. Casey got out of his truck walked around on the right-hand side of Causey’s car, reached in his pocket and got a pistol and shot Causey twice in the head. He then dragged the body of Causey out of the car to the ground, searched his pockets and got some money. He then took the body up from the ground and after two or three lunges got it back in the back seat of the oar. He then got a pint bottle and raised the hood of the car and detached the carburetor and got some gasoline and poured about one-half on Causey’s clothing, struck a match and set fire to same. The rest of the gasoline he poured on the car and set fire to it and burned the body and car almost beyond identification. Prior to this he had a dispute with the company which Causey worked for in the logging operations about stopping some money being paid him for timber sold off of land claimed by Causey’s company. Among the numerous and like quasi-threats, is the following: “The G — d d— son of a bitch, he was going down there, said wherever he met with G — d d— son of a bitch, wherever he met him he was going down with him.”
Defendant was tried at the September Special Term, 1930, of Lenoir County Superior Court. He was convicted of murder in the first degree, and sentenced to be electrocuted. He appealed to this Court and no error was found in the trial below. The opinion was filed 21 June, *6301931. At August Term, 1931, after this Court bad found that there was no error in the trial, the defendant filed this motion to set aside the judgment for newly discovered evidence and that certain jurors were disqualified. His Honor Judge W. A. Devin refused to hear the motion on the ground that he had no power, as the cause was not pending in the Superior Court of Lenoir County, also “the court further finds that the alleged newly discovered evidence seems to be in contradiction and cumulative, and considering the great mass of testimony offered at the trial from more than 100 witnesses, doubts that this evidence would have changed the result reached by the jury.”
I think the main opinion granting the power of the court below, after affirmance of judgment in a criminal case in this Court, to entertain a motion for newly discovered evidence is contrary to our well settled rule of practice and procedure, the Constitution and statutes applicable to the subject, and the ruling of Judge Devin is correct. In fact, the practice was so well settled in this jurisdiction that the Superior Court could not grant this motion after affirmance of judgment in this Court, that “The Rules of Practice in the North Carolina Superior Courts,” 200 N. C., at p. 843, et seq., prepared by this Court, makes reference to no such power and in regard to this practice as set forth in the main opinion, is as silent as the tomb. “Rules of Practice of the Supreme Court of North Carolina,” 200 N. C., at p. 811, annotated by the learned Chief Justice. At p. 840, we find the following:
“New trial for newly discovered evidence in civil cases.—Moore v. Tidwell, 194—186; Smith v. Moore, 150—158; Black v. Black, 111—301.
Requirements stated.—Johnson v. R. R., 163—431.
Motion in Superior Court after affirmance on appeal.—Allen v. Gooding, 174—271.
Newly discovered evidence not considered in criminal cases.—S. v. Griffin, 190—133; S. v. Lilliston, 141—857.”
This annotation is in bold type “Newly discovered evidence not considered in criminal cases.” Why? Because the practice and procedure was well settled in this jurisdiction and the Chief Justice had it put in bold type.
In the ease of Allen v. Gooding, supra, speaking of civil cases, at p. 272, we find: “The first case raising this question, after the changes in procedure following the adoption of the Constitution of 1868, was Bledsoe v. Nixon, 69 N. C., 81, in which it was held that an appeal took the whole case to the Supreme Court, and that when an appeal was taken the Superior Court could not entertain the motion. This eon-*631tinned to be tbe law until tbe act of 1887, was passed, and since then it bas been settled tbat tbe case remains in tbe Superior Court, and tbat while a motion for a new trial for newly discovered evidence may be considered in tbe Supreme Court while tbe appeal is pending therein, upon tbe judgment and opinion of tbe Supreme Court being certified to tbe Superior Court, tbe motion may be beard in tbe Superior Court at tbe next term. Black v. Black, 111 N. C., 303; Banking Co. v. Morehead, 126 N. C., 282; Smith v. Moore, 150 N. C., 159.”
In S. v. Lilliston, 141 N. C., at p. 865, speaking of criminal cases, we find: “In S. v. Rowe, 98 N. C., 630, Davis, J., says: ‘Upon careful consideration, we must adhere to tbe principle tbat in criminal actions tbe appellate jurisdiction of this Court is limited to a review and correction of errors of law committed in tbe trial below. S. v. Jones, 69 N. C., 16; S. v. Starnes, 94 N. C., 973.’ Tbe cases cited show tbat tbe Court adhered to its previous rulings on grounds broad enough to apply both to motions for ‘new trials for newly discovered evidence’ and for ‘rebearings.’ Tbe Court then proceeded to point out tbat there was no ground for tbe innovation which was sought, since tbe governor could look into tbe entire merits of tbe case and render any relief justice should demand. . . . (p. 866.) Tbe prisoner rests bis argument to overrule tbe uniform decisions and settled practice of this Court upon tbe following section 3272 of tbe Eevisal (O. S., 4644) which reads: ‘The courts may grant new trials in criminal cases when defendant is found guilty under tbe same rules and regulations as in civil cases.’ This clearly refers to tbe time Adíen be is found guilty,’ and when tbat section is turned to, it will be found further tbat it is under sub-bead ‘Trials, Superior Court,’ under which are grouped all tbe provisions peculiar to trials in tbat court, etc. . . . Tbe Constitution, Art. IV, sec. 8, is conclusive: ‘The Supreme Court shall have jurisdiction to review, upon appeal, any decision of tbe courts below, upon any matter of law or legal inference, and tbe jurisdiction of said court over ‘issues of fact’ or ‘questions of fact’ shall be tbe same as exercised by it before tbe adoption of tbe Constitution of 1868.’ ”
In S. v. Griffin, 190 N. C., at p. 135, Adams, J., speaking for tbe Court, says: “Pending tbe appeal, and immediately before tbe argument, tbe defendant filed a written motion for a new trial on tbe ground of newly discovered evidence. Tbe motion, of course, must be denied. In S. v. Lilliston, 141 N. C., 857, it is said tbat because tbe Court bas no jurisdiction it bas never entertained a motion of this kind, and tbat by uniformity of practice and decision tbe point bas been definitely settled against tbe defendant’s present contention. There are many cases to this effect. S. v. Flood, post, (per curiam); S. v. Hartsfield, 188 N. C., 357; S. v. Williams, 185 N. C., 643, 664; S. v. Jenkins, 182 N. C., 818; *632S. v. Ice Co., 166 N. C., 403; S. v. Arthur, 151 N. C., 653; S. v. Turner, 143 N. C., 641; S. v. Register, 133 N. C., 747; S. v. Council, 129 N. C., 511; S. v. Edwards, 126 N. C., 1051; S. v. Rowe, 98 N. C., 629; S. v. Starnes, 97 N. C., 423; S. c., 94 N. C., 973.”
It will be noted that tbe case of S. v. Starnes, 94 N. C., 973, S. c., 97 N. C., 421; S. v. Hartsfield, 188 N. C., 357, and S. v. Turner, 143 N. C., 641, are all cited in tbe Griffin case, supra, to sustain the lone position tbat it cannot be done in tbe Supreme Court, and is as silent as death as to any power to grant new trial in tbe Superior Court after affirmance of tbe judgment in tbis Court. Nor do any of tbe above cases cited in tbe main opinion sustain tbe opinion. Tbe nearest approach is S. v. Starnes, 97 N. C., 423. In tbat case, at p. 426, is tbe following: "Without stopping to inquire whether at this late stage in the proceedings, and after an unsuccessful appeal to the Supreme Court upon alleged errors in law, such an application can he entertained in the Superior Court, to whose jurisdiction tbe cause has been remitted, we proceed, as did tbe judge who- assumed tbe right to act upon tbe application, to consider tbe case upon its merits, as if made in due and apt time, and to a court having jurisdiction.” (Italics mine.) Then tbis ease was decided at February Term, 1887, and on an indictment found in 1886, before tbe act of 1887, chapter 192 (Black v. Black, 111 N. C., 300) went into effect, and at a time when tbe appeal vacated tbe judgment in tbe Superior Court.
In S. v. Turner, 143 N. C., at p. 643-4, we find: “But tbis Court has uniformly held tbat under tbe Constitution it has no power to entertain such motions in criminal cases, and has no desire to assume a function which can be more efficiently performed by tbe Executive. Tbe authorities and tbe reasons governing us are too recently set forth in S. v. Lilliston, 141 N. C., 863-9, to require their repetition here. Tbe jury did not act solely upon tbe testimony of Walker, for it acquitted tbe codefendant of tbe prisoner, who was also implicated by bis testimony. At common law there was no appeal in any criminal case, tbe sole remedy being by application to tbe home office, which is equivalent to tbe application to tbe Governor here. To tbis day, tbis is still tbe law in England. Our Constitution has changed tbis only to allow an appeal for error of law below, ‘on any matter of law or legal inference.’ Tbe organic law did not change tbe common law further so as to give criminals an appeal upon tbe facts, and did not allow us to review them upon affidavits as to facts not submitted to tbe jury. We have no right, as tbis Court has always held, to assume a power which tbe Constitution has left, as at common law, with tbe Executive Department. It is unnecessary for us to review tbe facts.”
*633In S. v. Hartsfield, 188 N. C., at p. 358, is the following: “The defendant, in limine, lodged a motion for a new trial upon the ground of newly discovered evidence. It is alleged that the information which the defendant considers vital and important to his defense, came to his attention after the adjournment of the term of court at which the case was tried, and after the appeal was docketed here. Allen v. Gooding, 174 N. C., 271. It is the settled rule of practice with us, established by a long and uniform line of decisions, that new trials will not be awarded by this Court in criminal prosecutions for newly discovered evidence. S. v. Williams, 185 N. C., p. 664; S. v. Jenkins, 182 N. C., 818; S. v. Lilliston, 141 N. C., 857, and cases there cited. Such motion may be entertained in' the Superior Court, at least during the term at which the case was tried, and allowed or not in the discretion of the judge presiding. S. v. Trull, 169 N. C., p. 370; S. v. Starnes, 97 N. C., 423. And ordinarily, the action of the trial court and his findings of fact on such motion are not subject to review on appeal. S. v. DeGraff, 113 N. C., p. 694.” (Italics mine.)
The present Chief Justice wrote the Hartsfield case. In that case he cites the Starnes case and does not cite it as holding that the Superior Court, after affirmance of judgment in this Court has the power that he now contends it has. In S. v. Jackson, 199 N. C., 326-7, Connor, J., quoting the Hartsfield case, takes the same view. These cases did not give the power. If they ever did, it was taken away by Pub. Laws 1925, chap. 55, sec. 1, which is as follows: “That section four thousand six hundred and sixty-three of the Consolidated Statutes of North Carolina (acts of one thousand nine hundred and nine, chapter four hundred and forty-three, section six) be amended by striking out said section entirely and substituting the following section in its place: 4363. In case of an appeal, should the Supreme Court find no error in the trial, or should the stay of execution granted by any competent judicial tribunal or proceeding, or reprieve by the Governor, have expired or terminated, such condemned person, convict or felon shall be executed, in the manner heretofore provided in this article, upon the third Friday after the filing of the opinion or order of the Supreme Court, or other competent judicial tribunal as aforesaid, or, in case of a reprieve by the Governor, such condemned person, convict or felon shall be executed in the manner heretofore provided in this article upon the third Friday after the expiration or termination of such reprieve; and it shall be the duty of the clerk of the Supreme Court, and of any other competent tribunal, as aforesaid, or the clerk thereof, to notify the warden of the penitentiary of the date of the filing of the opinion or order of such *634court or other judicial tribunal, and in case of a reprieve by the Governor, it shall be the duty of the Governor to give notice to the warden of the State Penitentiary of the date of the expiration of such reprieve.”
The act of 1925 is directly contrary to the position in the main opinion. There is nothing in it giving this power, and, in fact, “Such condemned person, convict or felon shall be executed, in the manner heretofore provided in this article, upon the third Friday after the filing of the opinion or order of the Supreme Court,” etc.
It would be practically impossible for a Superior Court at term to hear a petition for a new trial under this act in so short a time, in about three weeks, allowed to the condemned man, showing none was contemplated by the act. In fact, in numerous counties the Superior Courts do not meet more than two or three times each year. To grant a hearing of this kind, the Governor is bound to grant a reprieve as was done in this case, a hiatus in the law. Under the 1925 act the Governor is the only agency that could and has intervened. “The legislative, executive and judicial powers of the government ought to be forever separate and distinct from each other.” Const, of N. C., Art. I, sec. 8. This act does recognize that the condemned man, after affirmance of the judgment by this Court, has, under the Constitution of the State a place to flee — a city for refuge (for the manslayer). Numbers, chap. 35, verse 6. Now the Governor under our Constitution in all cases of homicide is the city for refuge. Art. Ill, sec. 6, gives the power: “The Governor shall have power to grant reprieves, commutations and pardons, after conviction, of all offenses (except in eases of impeachment), upon such conditions as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. He shall biennially communicate to the General Assembly each case of reprieve, commutation or pardon granted, stating the name of each convict, the crime for which he was convicted, the sentence and its date, and date of commutation, pardon or reprieve, and the reasons therefor.”
This horrible killing and cremation of Gausey by defendant took place on 3 July, 1930, nearly one year and a half ago. Another Superior Court does not convene in Lenoir County until 14 December, 1931. Then, again, an appeal perhaps to this Court. If the judgment is affirmed, then, again in the Superior Court at term a motion for newly discovered evidence, then again, an appeal to this Court. "Where and when is a criminal case ended? For a generation the position taken in this dissent has been well settled law and universally recognized by the profession.
*635The main opinion has no act of the General Assembly to support it, and is in the very teeth of the written law (Laws 1925, chap. 55). To allow this motion the practice and procedure in criminal cases will be, as it were, in quick-sand.
In Underhill’s Crim. Ev. (3d ed.), part sec. 785, p. 1088, we find the general law contrary to the main opinion, as follows: "In the absence of a permissive statute, a court has no• power to grant a new trial in case of a felony on account of newly discovered evidence. As regards misdemeanors, a court possessing general jurisdiction has inherent power at common law to grant a new trial on a motion, if it shall appear that justice will be advanced thereby. So far as felonies are concerned, the right of the accused to a new trial, upon the grounds of newly discovered evidence, is wholly the creature of statutes, which usually provide for the cases in which the right may be recognized, and the mode in which its exercise may be secured. The right to a new trial is never absoluteT (Italics mine.) In a note is the following: “It may he well in this place to call attention to a rule, which, in the absence of a statute prescribing when a motion for a new trial must be made, requires that it shall be made before the expiration of the term at which the trial was had. People v. Bradner, 107 N. Y., 1; 13 N. E., 87; Ex Parte Holmes, 21 Nebr., 324, 32 N. W., 69; People v. Hovey, 20 Hun. (N. Y.), 345.” (Italics mine.)
As to equal protection of the law, thrown into the main opinion, it may be said that our Constitution gives the Governor sovereign and plenary power in dealing with those convicted of crime. It makes a distinction between human and material things by giving the Governor a sovereign power after conviction, of all offenses, “to grant reprieves, commutations and pardons, . . . upon such conditions as he may think proper.”
This is a new departure, without precedent, provides for delay and fraught with possibilities of untold evil. Orderly government is the very foundation of our civilization. Mob violence for any crime is abhorrent, therefore it is incumbent to have speedy trials “and right and justice administered without sale, denial or delay.” Const. N. C., Art. I, sec. 25. Applications for new trials on newly discovered evidence are not favored by the courts and are subjected to the closest scrutiny to prevent as far as possible fraud and imposition, which defeated parties may be tempted to practice.