State v. Vann
| Citation | 77 S.E. 295,162 N.C. 534 |
| Parties | STATE v. VANN. |
| Decision Date | 19 February 1913 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Pasquotank County; Lane, Judge.
B. T Vann was convicted of second-degree murder, and appeals. Affirmed.
Where after a juror was passed by the state and accepted by accused, he voluntarily stated to the court that he was opposed to capital punishment and would not convict, the court properly permitted the state to challenge such juror for cause.
Part of the court's charge was as follows:
The prisoner was indicted for the murder of Oliver Layden, and was convicted of murder in the first degree. The testimony tended conclusively to show that the defendant had committed the murder. Oliver Layden left his home at 4 o'clock on the morning of July 11, 1912, stating to his mother that he was going to Elizabeth City to have his watch mended, and never returned to his home. He was seen several times in Elizabeth City, and at other places that day, in company with the defendant. They were riding together on bicycles, which were, on the same day, left at Cartwright's shop. The prisoner disappeared, and, as he had been the last one seen with the deceased, several persons went to Norfolk in search of him. He was found at the home of his brother, Ebe Vann, in Berkley, a town in Virginia, near the city of Norfolk. When questioned as to the whereabouts of Oliver Layden, he seemed embarrassed, and he and his brother acted in a very suspicious manner. The prisoner ran from the house, jumped over a fence, and attemped to escape. He was overtaken and arrested, but before his arrest, being asked where he had left Oliver, he stated, at first, that he had been with him at his brother's house in Berkley, but was not satisfied there and had gone with him to Norfolk, though he would not say where he was in Norfolk. He afterwards said that he was not in Norfolk, but in Brooklyn, at 22 Catherine street, and when further questioned he said that he had left him in New York at the station; that Oliver had $11, and told him that he would not stop until he had crossed the ocean. The last of July or the 1st of August a dead human body was found about four miles from Elizabeth City, in a dense thicket, at a place called the "Desert," and also the clothing and picture of deceased, and other articles identified as his. A pistol of 38 caliber was also found with two empty chambers, and there were two holes made by the pistol shots in the coat and underclothing. The pistol belonged to the prisoner, and was found in the bushes near by. The appearance of the place indicated that the body had been dragged from the railroad track to the place where it was lying concealed from the view of passersby. The coat had been scorched by the fire from the pistol, showing that the person who killed the deceased was very close to him when he shot. There were facts and circumstances in evidence which tended to connect the prisoner with the homicide, but not necessary to be stated. He testified in his own behalf and admitted that he killed Layden, and that he acted in self-defense, Layden, after a quarrel between them, having advanced on him with a drawn knife, which put him in fear of his life; and that he shot and killed Layden believing, at the time, that his life was in peril. He admitted having fled to Norfolk and then to New York by way of Cape Charles, but said he was badly frightened and left on that account. He further stated that he dragged the body to the place where it was found, and threw the bicycle, pistol, and knife in the bushes, because he was "scared" and did not know what he was doing; and he gave the same reason for making the conflicting statements to the Laydens and the sheriff at Berkley about the matter. Mrs. Layden, mother of the deceased, testified that Oliver never carried a knife, except a small pocketknife, which she found in his pocket after he had gone. There was a judgment upon the verdict, from which the prisoner appealed, after duly excepting to certain rulings of the court, set out in the opinion.
Ward & Thompson, of Elizabeth City, W. M. Bond, of Edenton, and P. W. McMullan, of Hartford, for appellant.
Attorney General Bickett and T. H. Calvert, of Raleigh, for the State.
WALKER, J. (after stating the facts as above).
The prisoner's first exception relates to the exclusion of W. E. Hinton, as a juror, from the panel. It appears in the case that Hinton, one of the special venire, was passed by the state and accepted by the prisoner. He then voluntarily stated to the court that he was opposed to capital punishment; and that he would not agree to a verdict of guilty, even if the evidence, under the court's instruction, should satisfy him beyond a reasonable doubt of the prisoner's guilt. The court, in the exercise of its discretion, permitted the state to challenge the juror, and upon said challenge, it being found that he was not indifferent or qualified to serve as a juror, the court sustained the challenge and he was excused. We do not perceive any error in this ruling. The precise question was raised in State v. Boon, 80 N.C. 461. In that case one of the jurors was called, and passed without a challenge to the prisoner, who accepted him. When he was about to be sworn as a juror, he stated to the court that he was related to the deceased and the prisoner. At his own request the court directed to stand aside, and declined to have him sworn as one of the jurors. The exception of the prisoner to this ruling was overruled. A similar decision was made in State v. Adair, 66 N.C. 298, where 12 of the venire had been tendered and accepted by the prisoner and duly sworn as jurors; but before they were impaneled it was found that one of the jurors was related to two of the prisoners, which fact was not known to counsel or the court when the juror was sworn. He was discharged, and the ruling was sustained by this court on appeal; Pearson, C.J., saying that, "as the jury was not impaneled and charged with the case, it was within the discretion of the court to allow the solicitor the benefit of a challenge for cause, so as to secure a jury indifferent as between the state and the prisoner." This rule of practice is well settled by the authorities. State v. Jones, 80 N.C. 415; State v. Cunningham, 72 N.C. 469; State v. Green, 95 N.C. 614; State v. Ward, 39 Vt. 225.
The rule really goes beyond this, for it is the right and duty of the court to see that a competent, fair, and impartial jury are impaneled, subject to the right of peremptory challenge by the prisoner; and in the discharge of this duty it may stand aside a juror at any time before the jury are impaneled and charged with the case. State v. Jones, supra; State v Boon, supra, and cases therein cited. The court therefore may act of its own motion, in furtherance of justice, and need not wait for a formal challenge, if a juror appears to be disqualified. Any other practice would be subversive of fair and impartial trials, and we do not understand the learned counsel of the prisoner to insist strenuously upon this exception. It may be added that it does not appear that the prisoner had exhausted his peremptory challenges. His right to challenge is not one to select, but to reject, a juror; and, as was said in State v. Cunningham, supra, "he obtained a jury of his own selection, and in no point of view was he prejudiced...
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