State v. Alman

• Decision Date: 31 January 1870
• Citation: 64 N.C. 364
• Court: North Carolina Supreme Court
• Parties: THE STATE v. NATHAN ALMAN.

64 N.C. 364

THE STATE

v.NATHAN ALMAN.

Supreme Court of North Carolina.

January Term, 1870.

*1 A jury charged with a case of alleged murder, retired to consider of their verdict upon Saturday of the first week of the term, at 8 o'clock, P. M., and upon Monday of the 2d week, at 5 1/2 o'clock, P. M., returned into Court, being unable to agree; thereupon, the Judge ordered a juror to be withdrawn; Held, that such order was erroneous, and in consequence thereof, the prisoner could not be tried again, and had a right to be discharged from custody.

On a trial for felony no order that may prejudice the prisoner, can be made in his absence from the bar.

( State v. Prince, 63 N. C. 529; State v. Bullock, ib. 570 cited and approved.)

MOTION to discharge a prisoner, made before Watts, J., at Fall Term 1869, of WAKE Court.

The prisoner had been indicted at the same term for Murder. The jury charged with the trial of the case retired to consider of their verdict at 8 o'clock, P. M., of Saturday in the first week of the term, “and being unable to agree,” came to the bar of the Court on Monday evening at half-past 5 o'clock, when a juror was withdrawn, and the jury discharged, neither the prisoner nor his counsel being present in Court.

Afterwards, at the same term, the counsel for the prisoner moved for his discharge from custody. This motion was overruled, and the prisoner appealed.Fowle & Badger, for the appellant .

Attorney General and Cox, contra .

RODMAN, J.

In The State v. Prince, 63 N. C. 529, it was decided that a Court had no power to discharge a jury under the state of facts appearing of record there. In that opinion, the previous decisions of this Court were discussed, and we thought ourselves justified, by the authority of Newton's case, 66 E. C. L. 716, and the reasons therein stated, in holding that the rule asserted in our former cases, could not be supported in its full extent. The counsel for the present defendant, in his argument before us, suggested that by an incidental statement occurring in the opinion in Prince's case, to the effect that in Newton's case, the jury had been discharged after a deliberation of about thirty-six hours, without the statement of the additional fact which existed in that case, i. e. that the term of the Court had expired, the Judge below might have been mislead to suppose, that in our opinion a jury might be properly discharged if unable to agree after a deliberation of thirty-six hours, without further reason to justify the discharge. We are not inclined to think that the Judge below drew any such inference, as it would betray on his part a superficial consideration of the the opinion. We were not there, undertaking to prescribe the circumstances which would justify a Judge in discharginga jury, and the circumstance in Newton's case of the length of time during which the jury had deliberated, was mentioned only to show that the case departed widely from the previous decisions of this Court. In fact such an inference was precluded by the statement, that it was impossible to lay down any general rule which should govern all cases, but that each must be decided by the Judge presiding at the trial, on its own circumstances. The only case in which we undertook to say that it would be proper to discharge a jury, was one like Spier's, in which the term expired...