State v. Bailey

• Decision Date: 30 June 1871
• Parties: THE STATE v. MILES BAILEY.
• Court: North Carolina Supreme Court

65 N.C. 426

THE STATE

v.MILES BAILEY.

Supreme Court of North Carolina.

June Term, 1871.

The judgments of inferior Courts at Common Law could only be reviewed by writs of error, or writs of false judgment. By our Law, appeals are used in lieu of those writs.

Appeals from interlocutory judgments are only allowed in civil suits, and this by virtue of Rev. Code, chap. 34, sec. 27. Therefore when the Court found from ex parte affidavits that the defendant, during the trial of an indictment for larceny, was guilty of tampering with a juror, and for such conduct ordered a juror to be withdrawn and a mistrial made, the defendant had no right to appeal to this Court. State v. Prince, 63 N. C. 529, cited and commented on.

This was an indictment for larceny, with a count for receiving stolen goods, tried before Pool, J., at Spring Term, 1871, of BERTIE Superior Court.

The defendant had pleaded “not guilty,” when the jury was empanneled, and three witnesses had been examined on the part of the State. The Court was then adjourned for the night, and the jury permitted to separate, with the usual instructions not to discuss the case amongst themselves, nor to allow others to speak of the matter to them.

On the meeting of the Court next morning, the Solicitor offered certain ex parte affidavits of indifferent persons, charging defendant, two of the jurors, and one of the witnesses, with corrupt conduct during the recess of the Court, and moved to discharge the jury from the further consideration of the case. The defendant opposed the motion, and asked to be allowed to offer the affidavits of himself and those of the two jurors, and that of the witness charged with these offences, denying the allegations made against them. The Court held that the affidavits of indifferent persons could be offered, but declined to hear the affidavits of the parties implicated; to which defendant excepted.

Th?? Court, after finding the facts from the ex parte affidavits, which the decision of the Court renders unnecessary to be recited, ordered a juror to be withdrawn and mistrial made.

The Solicitor moved that the defendant be required to enter into recognizance for his appearance at the next term of this Court. The defendant moved to be discharged. The Court overruled defendant's motion, and required him to enter into recognizance for appearance asked for by the State.

The defendant prayed an appeal to the Supreme Court, from the order discharging the jury and making a mistrial, and from the order requiring him to enter into recognizance.

Attorney General, for the State .

D. A. Barnes, for the defendant .

BOYDEN, J.

At common law, there was no appeal from the decision of any of the Courts, high or low, and these decisions could only be reviewed by writ of error, or writ of false

judgment.

By our law, appeals are used as a substitute for those writs, and these writs were always after a final judgment in the Court where the suits were tried; and appeals being by our law a substitute for writs of error and false judgment, were always after a final decision, until the act of 1831-'2, Rev. Code, chap. 35, sec. 2, entitled “an act to allow appeals to the Supreme Court from interlocutory judgments, orders, and decrees of the Superior Courts of Law and Courts of Equity.”

And when appeals were allowed by the Judges under the act of 1831-'2, the Supreme Court possessed no power under this act to enter any judgment reversing, affirming or...