Carter v. King

• Decision Date: 14 November 1917
• Docket Number: 355.
• Citation: 94 S.E. 4,174 N.C. 549
• Parties: CARTER v. KING.
• Court: North Carolina Supreme Court

94 S.E. 4

174 N.C. 549

CARTER v. KING.

No. 355.

Supreme Court of North Carolina

November 14, 1917

Appeal from Superior Court, Rockingham County; Harding, Judge.

Action by J. D. Carter against D. F. King. Judgment for plaintiff and defendant appeals. Affirmed.

Refusal to grant a new trial for incompetency of a juror, because of relationship discovered after verdict, is in the trial court's sound discretion.

Civil action tried on these issues:

(1) Did the defendant publish of and concerning the plaintiff in a letter to A. L. Brooks, Esq., the words set out in the plaintiff's second cause of action? Answer: Yes.

(2) If so, did the defendant thereby charge the plaintiff with corruption or bribery in the discharge of his duties as a juror? Answer: Yes.

(3) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $1,500.

From the judgment rendered, defendant appealed.

A. W Dunn, of Leaksville, J. R. Joyce, of Reidsville, and Manning & Kitchin, of Raleigh, for appellant.

W. R Dalton and P. W. Glidewell, both of Reidsville, and W. M Hendren, of Winston-Salem, for appellee.

BROWN J.

1. During the selection of the jury the defendant challenged Juror R. C. Comer on the ground of kinship to the plaintiff, the juror stating that he was fifth cousin to the plaintiff. The court held that a fifth cousin is not within the ninth degree, and held that his kinship was not cause for challenge. The defendant then challenged said juror peremptorily, and he thereafter exhausted his other three challenges before accepting the jury. There is nothing in the record to indicate that there was any person on the jury against defendant's will. He had gotten rid of Comer and had exhausted his three remaining challenges before accepting the jury. He attempted to make no further challenge before accepting the jury, and that must be taken to indicate his satisfaction with the panel. The defendant should have challenged a fifth juror before accepting the jury to indicate his dissatisfaction and then except to the refusal to allow the peremptory challenge upon the ground that they were not legally exhausted. The exact point was presented and decided in Oliphant v. Railroad, 171 N.C. 304, 88 S.E. 425, citing State v. Cockman, 60 N.C. 485.

2. After verdict and before judgment signed defendant moved to set aside the verdict because one of the jurors was related to plaintiff within the ninth degree. Upon perusal of the panel defendant questioned Juror Roberts, and asked about his relationship to plaintiff. The juror stated that he was not related within the ninth degree. Defendant passed the juror. The juror was third cousin to plaintiff, well within the ninth degree. The court finds that in stating the relationship the juror made such statement in good faith, without any intention of speaking inaccurately or misleading the the court or the defendant. The court finds that the defendant did not challenge the juror or inquire for other cause, and that he had a peremptory challenge unused, but accepted the juror, and that after accepting the Juror Roberts, defendant's counsel then challenged another juror and stood him aside, exhausting his fourth peremptory challenge. There was no effort on the part of the defendant to exercise the right of peremptory challenge other than the fourth above set out, three of which had been exhausted before the Juror Roberts had been questioned, and one was exhausted after. The refusal of his honor to set aside the verdict and grant a new trial is a matter within the sound discretion of the court, and is not reviewable. State v. Davis, 80 N.C. 415; State v. Lambert, 93 N.C. 624; Baxter v. Wilson, 95 N.C. 143; State v. Maultsby, 130 N.C. 665, 41 S.E. 97. In State v. Davis, 80 N.C. 415, the court said:

"We think the principles deducible from all the authorities above cited are that where the challenge is to the poll, made for good cause, in apt time--that is before the juror is sworn--it is strictly and technically a ground for a venire de novo, if made after the juror is sworn, the court may, in its discretion, allow the challenge; but its refusal to do so is no ground for a venire de novo, because the prisoner has lost his legal right by not making his objection at the proper time. And the same principle applies if the objection existed at the time the juror was sworn, but not discovered until afterwards. In that case the refusal by the court to grant a venire de novo or new trial, which in effect are the same, would not be error, and the only redress then left the prisoner is an appeal to the sound discretion of the court before whom the case was tried for a new trial, and, if refused, he has no right of appeal."

3. The defendant offered no evidence, and moved to nonsuit. The evidence tends to prove that an action was tried in the superior court of Rockingham county, entitled Leaksville Spray Institute v. B. Frank Mebane, in which defendant was interested personally as a trustee of the institute. The jury being unable to agree upon a verdict, a mistrial was ordered. The jurors, it appears, stood 11 for defendant Mebane and 1 for plaintiff institute. This plaintiff was one of the 11. There...