State v. Andrews

• Decision Date: 22 April 1914
• Citation: 81 S.E. 416,166 N.C. 349
• Court: North Carolina Supreme Court
• Parties: STATE. v. ANDREWS.

(166 N.C. 349)

81 S.E. 416

STATE.

v.ANDREWS.

Supreme Court of North Carolina.

April 22, 1914.

1. Criminal Law (§ 751*) — Conduct of Trial—Withdrawal of Juror.

On trials for misdemeanors and felonies less than capital, it is within the discretion of the trial judge to direct that a juror be withdrawn and to order a mistrial when in his opinion necessary to the ends of justice.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 751.*]

2. Criminal Law (§ X51*)—Conduct of Trial —Withdrawal of Juror.

Pub. Laws 1913, c. 73, § 1, providing that in any criminal case, when the state shall have rested, defendant may move to dismiss or for a nonsuit, that if the motion be allowed judgment shall be entered accordingly and shall have the force and effect of "not guilty, " that if the motion be refused defendant may except, and if he introduces no evidence the case shall be submitted as in other cases, but he shall have the benefit of his exception on appeal, that he may introduce evidence and again move for a nonsuit after all the evidence is concluded, and except to the refusal of such motion and have the benefit of such exception on appeal, and that if his motion made at the trial be granted or sustained on appeal it shall have the force and effect of a verdict of not guilty, does not withdraw from the trial judge the power in his discretion to order a mistrial even after defendant has moved to dismiss or for a nonsuit.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 751.*]

3. Criminal Law (§ 1023*)—Appeal — Decisions Reviewable — Appealable Judgments and Orders.

No statutory appeal in ordinary form lies in criminal cases except from a judgment of conviction or a judgment in its nature final, and hence no appeal can be taken from the court's ruling granting a mistrial after defendant's motion for a nonsuit.

fEd. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. $ 1023.*]

Appeal from Superior Court, Guilford County; Lane, Judge.

Jerry M. Andrews was indicted for abandonment. From the court's rulings denying his motion for a nonsuit, directing the withdrawal of a juror, and ordering a mistrial, and denying his motion to proceed with the cause, defendant appeals. Appeal dismissed.

Indictment for abandonment, heard before his honor, H. P. Lane, judge, and a jury, at January term, 1914, of the superior court of Guilford county. There was evidence offered by the state with a view of supporting the bill of indictment. At the close of the state's testimony, the case on appeal shows the following proceedings as transcribed from the minute docket entries: "The defendant's counsel moved the court to dismiss the bill of indictment, on the ground that the testimony of the state, in the light most favorable to its contentions, did not show any offense to have been committed, but showed, on the contrary, that no offense had been committed, and that the defendant has neither abandoned, nor failed to provide support, as charged. His honor, thereupon, intimated that he would allow this motion. Whereupon, the state asked leave, in deference to this intimation of the court, to enter a nol. pros. Upon intimation by the court that this would not be allowed, after the close of the testimony, and after the motion by the defendant, the state then asked the court to withdraw a juror and order a mistrial, which the court intimated its purpose to do. Thereupon, the defendant, through his counsel, then moved the court to proceed with the trial of the cause. This motion of the defendant was also declined. To this refusal of his honor to proceed with the cause, the defendant excepted. The court then refused to allow the defendant's motion to dismiss. To this refusal of his honor, the defendant excepted. Thereupon, the court caused entry to be made of the withdrawal of a juror, and ordering a mistrial. To this action of the court, the defendant excepted. The defendant, excepting to the action of his honor in the particulars noted, in open court, appealed to the Supreme Court." The record further shows the judgment of the court and other proceedings had as follows: "When state had rested, counsel for defendant moved for a nonsuit. Overruled. Exception. It appearing to the court that there may be probabilities of the prosecuting witness and the defendant being reunited in a home, the court, in exercising its discretion, ordered a juror to be withdrawn and mistrial made. The defendant in open court gives notice of appeal from the ruling of the court overruling motion of the ruling of the defendant for the dismissing of this case upon testimony of state's witness. Also, for the refusal of the court to proceed with the trial of cause after said motion was overruled. For the ruling of the court withdrawinga juror and making a mistrial. Notice waived. Appeal bond fixed at $25."

W. P. Bynum, R. R. King, Jr., and King & Kimball, all of Greensboro, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE, J. [1] The order of his honor, making present disposition of the cause, was one directing that a juror be withdrawn and a mistrial had, and it has been uniformly held with us that such an order presents no case for appeal in a criminal action, but, in misdemeanors and felonies less than capital, the matter is referred by our law to the discretion of the trial judge. State v. Thomas Hunter, 143 N. C. 607, 56 S. E. 547, 118 Am. St. Rep. 830; State v. Bass, 82 N. C. 576; State v. Weaver, 35 N. C. 203. In State v. Weaver, Nash, Judge, delivering the opinion, quotes with approval from State v. Morrison, 20 N. C. 115: "That 'it must, from the reason and necessity of the thing, belong to the court on trials for misdemeanors to discharge the jury, whenever the circumstances of the case render such interference essential to the furtherance of justice. Every question of this kind must rest with the court under all the peculiar circumstances of the case, '" and again: "The rule then is that in misdemeanors the court may withdraw a juror when in its discretion it judges it necessary to the ends of justice. No precise rule can be laid down to govern the infinite variety of cases that may come under the general question touching the power of the court to discharge juries charged in criminal cases of misdemeanor. It must be left in the sound discretion of the judge who tries the cause. And it is right it should be so. The reasons for exercising the power must be more accurately...