State v. Ashburn

• Decision Date: 14 May 1924
• Docket Number: 3470.
• Parties: STATE v. ASHBURN ET AL.
• Court: North Carolina Supreme Court

122 S.E. 833

187 N.C. 717

STATE v. ASHBURN ET AL.

No. 3470.

Supreme Court of North Carolina

May 14, 1924

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

Early Ashburn was convicted of murder in the second degree, and he appeals. Affirmed.

Where one of two defendants, after exhausting his peremptory challenges and after the overruling of his challenge for cause of a particular juror, expressed a dislike for him, it was not error to permit such juror to serve after being accepted by the other defendant, though such defendant subsequently pleaded guilty and was used as a witness for the state.

The defendants were indicted, with Sena Thomas, for the murder of an infant born to the defendant Essie Handy. A true bill was found against Early Ashburn and Essie Handy, and not a true bill as to Sena Thomas. The defendants, Early Ashburn and Essie Handy, pleaded not guilty, whereupon a venire was ordered and summoned. After the jury was selected and impaneled, Essie Handy pleaded guilty of manslaughter, which plea was accepted by the state, and she testified as a witness for the state. There was a verdict of guilty of murder in the second degree as to Early Ashburn. From the judgment rendered the defendant assigned errors and appealed to the Supreme Court. The other material facts and the assignments of error will be considered in the opinion.

J. H Folger, of Mt. Airy, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The first assignment of error was to the court below denying the defendant Early Ashburn "challenge for cause" as to the juror W. S. Gough; the contention being that he had a case on the docket at issue, and that the rule of the bar as printed, at the foot of the calendar, is that civil cases not calendared may be taken up by consent.

The court, upon objection to the juror, stated that all civil cases not on the calendar are continued, for that it is impossible to try civil cases not on the calendar set for this term. The juror was then challenged peremptorily by the defendant Ashburn.

C. S 2316, is as follows:

"If any of the jurors drawn have a suit pending and at issue in the superior court, the scrolls with their names must be returned into partition No. 1 of the jury box."

It is well settled that if a juror has a suit pending and at issue in the superior court of the county, he may be challenged for this cause. State v. Levy, 187 N.C. 583, 122 S.E 386; State v. Hopkins, 154 N.C. 622, 70 S.E. 394; State v. Spivey, 132 N.C. 989, 43 S.E. 475; State v. Vick, 132 N.C. 997, 43 S.E. 626; Hodges v. Lassiter, 96 N.C. 351, 2 S.E. 923.

The object of C. S. 2316, is to disqualify one to serve as a juror at the same term that he has "a suit pending and at issue," to be tried at that term, so that he could not associate with the other jurors who might sit on his case. The reason is apparent. Cessante ratione legis, cessat et ipsa lex (the reason of the law ceasing, the law itself ceases also).

The court below continued the case of the juror. It was not on the calendar, and it was impossible to try it at that term. This was in the sound discretion of the court below. State v. Hopper, 186 N.C. 411, 119 S.E. 769.

The second, third, and fourth assignments of error were to the court below allowing W. M. Payne, S. A. Johnson, and J. A. Hayes, jurors, to be stood aside. The jurors referred to in these assignments of error were examined as to their qualifications and competency to serve upon the jury by the defendant Essie Handy; they having been passed by the state and by the defendant Ashburn. The counsel of Essie Handy challenged the several jurors for cause, whereupon in each case the solicitor admitted the cause, and the jurors were stood aside.

Section 2325, C. S., provides:

"The court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make inquiry as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror until the party shall formally state that such person is so challenged."

Section 4633, C. S., provides:

"Every person on joint or several trial for his life may make a peremptory challenge of twelve jurors and no more; and in all joint or several trials for crimes and misdemeanors, other than capital, every person on trial shall have the right of challenging peremptorily, and without showing cause, four jurors and no more. And to enable defendants to exercise this right, the clerk in all such trials shall read over the names of the jurors on the panel, in the presence and hearing of the defendants and their counsel, before the jury shall be impaneled to try the issues; and the judge or other presiding officer of the court shall decide all questions as to the competency of jurors."

Section 4634, C. S., provides:

"In all capital cases the prosecuting officer on behalf of the state shall have the right to challenge peremptorily four jurors for each defendant, but shall not have the right to stand any jurors at the foot of the panel. The challenge must be made before the juror is tendered to the prisoner, and if he will challenge more than four jurors he shall assign for his challenge a cause certain; and in all other cases of a criminal nature a challenge of two jurors shall be allowed in behalf of the state for each defendant, and challenge also for a cause certain, and in all cases of challenge for cause certain the same shall be inquired of according to the custom of the court."

These sections were part of the amendments made by chapter 31, Public Laws of 1913. The first quoted section, to wit, 2325, was plainly intended to eliminate the practice that had grown up prior to 1913, when the solicitor asked a person called to serve on a jury in a capital felony challenge for cause, counsel of defendants could admit the cause without further question of the juror, and the juror would be stood aside. This section provides and gives the right to the state or to the defendant to inquire of the juror as to his fitness and competency to serve, but none of these questions shall be considered a challenge until the party actually and formally challenges the juror. There is no provision in the statute law of the state which prevents the adverse party from, then, when the juror is formally challenged, admitting the cause.

The section above quoted, 4634, abolished what had been, up to 1913, a practice employed by the solicitors of standing a certain number of persons at the foot of the panel. But there is nothing in this section which prevents either the solicitor or counsel for the defendant, when a juror is formally challenged, from admitting the cause, and then the juror is stood aside. In this case, as to those jurors, the state passed the jurors, the defendant Ashburn, being first named in the indictment, passed the jurors, but the other defendant in the indictment, Essie Handy, had certainly a right to determine whether the jurors were acceptable to her, and she had a right to challenge the jurors for cause. It seems under these statutes above quoted, and under the custom of the court, which is provided in section 4634, C. S., the solicitor had a right to admit the cause. Ashburn could not object. It seems that in this particular case, according to the record, the defendant obtained advantage in selecting the jury by this same practice, Jurors J. E. Southern and R. J. Williams were challenged for cause by defendant Ashburn and the cause admitted by the state, and the jurors stood aside.

Section 4633, supra, allows each defendant 12 peremptory challenges--three times more than the state. The intent of the law is to secure a jury that will render a fair and impartial verdict.

The assignment of error No. 5 is untenable from the view we take of the before mentioned assignments. F. C. Sprinkle, a juror, was challeged for cause by defendant Ashburn. No cause found, whereupon Ashburn, having exhausted all his peremptory challenges, asked the court to stand the juror aside. The court refused. The juror was tendered to the defendant Ashburn, who, through his counsel, in answer to the question, "Do you like him?" answered, "No." The juror was not stood aside, but tendered to and accepted by the defendant Essie Handy. The juror having been passed by the state was sworn and served on the panel.

It appears that Essie Handy remained as a defendant in the trial of this cause until the jurors were selected before she entered her plea of manslaughter, and was afterwards used as a witness for the state. We do not think this fact would debar her of the legal rights she had in selecting the jury. It was a circumstance that could be, and no doubt was, commented on to the jury to affect her credibility showing her interest to save herself. But this is a fact we cannot deal with.

We do not think there was any error in the rulings of his honor constituting assignments of error 6 and 7, for the reason that it does not appear what witness' answer would have been in either case. The first exception is taken to the question asked R. E. Lawrence, chief of police, to wit:

"Did Mrs. Gordy make any statement to you at Mrs. Cook's about the birth of this child?"

We understand the rule to be that excluded testimony must be set out, and it must appear that it was relevant and material. The question asked the chief of police does not itself convey what the answer would have been, nor does the question constituting the seventh exception carry with it a suggestion of the answer, and there is no statement in respect to either question as to what the answer of the...