Moore v. Navassa Guano Co.

• Decision Date: 29 April 1902
• Citation: Moore v. Navassa Guano Co., 130 N.C. 229, 41 S.E. 293 (N.C. 1902)
• Parties: MOORE v. NAVASSA GUANO CO.
• Court: North Carolina Supreme Court

41 S.E. 293

130 N.C. 229

MOORE v. NAVASSA GUANO CO.

Supreme Court of North Carolina

April 29, 1902

Appeal from superior court, Brunswick county; McNeill, Judge.

Action by Francis M. Moore against the Navassa Guano Company. From a judgment for plaintiff, defendant appeals. Reversed.

Error in failing to sustain a challenge to the array renders the verdict void.

Russell & Gore and Rountree & Carr, for appellant.

Meares & Ruark and Bellamy & Peschau, for appellee.

FURCHES C.J.

The court being of opinion that the defendant's challenge to the array (which is defendant's first assignment of error) should be sustained, no other exception will be considered. The defendant's challenge and motion to discharge the panel is based on two affidavits,--one by C. E Taylor, register of deeds and clerk of the board of county commissioners, and the other an affidavit of T. L. Vines. The judge finds but one fact: "That the commissioners, in drawing the jury and in acting as set out in the affidavits did not have any corrupt intent; and counsel for defendant in arguing on the challenge, stated that they did not charge any corrupt intent." But the court in this finding refers to the affidavits, "in acting as set out in the affidavits," and transmits them to this court as a part of the record on appeal. They are not contradicted, and therefore must be taken as true, and as a part of the findings of the court. We then have the findings of the court in substance to be: That the county commissioners of Brunswick county, in August, 1901, met and proceeded to draw the jury now objected to by the defendant; that the register of deeds, who was clerk of the board, and the sheriff of the county, and a boy under 10 years old, and T. L. Vines were present. The drawing then proceeded,--the boy drawing the scrolls from No. 1, of the jury box, and handing them to the chairman. The names were then discussed, as to whether they should be jurors or not, and as many as 10 or more of the names so drawn were rejected and returned to box No. 1. The affidavit of Taylor states that the object seemed to be to distribute the jurors to the different townships, and not to have them too near those already drawn. The affidavit of Vines states: "That said S. J. Stanly, commissioner, objected to a number of names in Shallotte township, which were drawn from the box, and said names were discarded and returned to box No. 1; and Sheriff Walker objected to several from Town Creek township. When the name of Monroe Hickman was drawn, some one said, 'He is right there among the rest,' meaning that he was from the same community or neighborhood as others whose names had been drawn, and Commissioner Stanly replied, 'I want him,' and his name was placed on the list. That Stanly's own son was selected because he (S. J. Stanly) said he wanted to come to Southport so bad we had better take him." These are to be taken as the facts connected with drawing the jury, and that there was no "corrupt intent." A challenge to the array is a challenge to the entire panel summoned and returned by the sheriff as jurors, and, if allowed, the entire jury or panel is discharged. If not allowed, when it should have been, it vitiates and renders void the trial by a jury selected from this improper array. This objection to the panel or challenge to the array "can only be taken [sustained] when there is partiality or misconduct in the sheriff or some irregularity in making out the lists." State v. Speaks, 94 N.C. 865. Section 1727 of the Code provides for drawing juries, and is as follows: "At least twenty days before the regular fall and spring terms of the superior court in each year, the commissioners shall cause to be drawn from the jury box, out of the partition marked No. 1, by a child not more than ten years of age, thirty-six scrolls, and the persons whose names are inscribed on said scrolls shall serve as jurors at the fall and spring terms of the superior court to be held for the county respectively ensuing such drawing, and the scrolls so drawn to make the jury shall be put into the partition marked No. 2." It cannot be contended, and was not contended, that there were not manifest irregularities in drawing this jury; and, under the rule stated in State v. Speaks, the defendant's motion should have been sustained and the panel discharged.

But the plaintiff says this statute is only directory,--not mandatory,--and, this being so, the court should not have sustained the defendant's challenge to the array, and cites State v. Haywood, 73 N.C. 437; State v Martin, 82 N.C. 673; State v. Hensley, 94 N.C. 1021; State v. Stanton, 118 N.C. 1182, 24 S.E. 536; State v. Smarr, 121 N.C. 669, 28 S.E. 549; State v. Fertilizer Co., 111 N.C. 658, 16 S.E. 231; State v. Perry, 122 N.C. 1018, 29 S.E. 384. We have examined these cases, and several of them state that this statute is directory, and irregularities of the commissioners in drawing the jury will not sustain a challenge to the array. The case of State v. Haywood, first cited by plaintiff, is decided upon the ground that the motion was not made in time; and, while it speaks of section 229 of the Code of Civil Procedure not being mandatory, it seems to put this upon the terms of that section, which is said to expressly provide that irregularities in drawing the jury shall not vitiate the jury. And to leave no doubt as to this, he quotes the statute, as follows: "'In all cases where the county commissioners of any county may have revised the jury lists, or corrected the same, or drawn a jury at a time or in a manner different in form from that prescribed by law, the same shall be valid as if drawn at the proper time and in the proper manner: provided, said action has been in all other respects conformable to law.' This proviso does not cover our case. If a person not on the jury list should be summoned, or one not qualified as a juror, such irregularity 'could not be conformable to law,' and would fall within the provision, and, if objected to in apt time, would probably be fatal to the indictment found." It clearly appears that what the learned judge said as to irregularity not vitiating is put upon the provisions of the statute at that time, which seems to have been omitted in the Code of 1883; and it is said in that opinion that such irregularities as were included in the proviso would not be "conformable to law" and would vitiate the jury. The statute in force when the opinion in State v. Haywood was written seems to have been still in force when the opinion in State v. Martin, 82 N.C. 673, was written; and it is probable that that statute and the opinion of the court in State v. Haywood influenced the court in that case to say what it did as to the statute being directory, as it was not necessary to the decision of the case to have discussed the statute, and this is shown in the opinion. This case (State v. Martin) is the strongest case in support of the plaintiff's contention of any of the cases cited. But this case goes a bowshot beyond that case. It is true that the statement of facts in that case shows that the commissioners undertook to equalize the jurors in the different parts of the county. This we do not approve, and think the commissioners in that case exceeded their legal authority,...