State v. Barkley

• Decision Date: 19 February 1930
• Docket Number: 1.
• Parties: STATE v. BARKLEY.
• Court: North Carolina Supreme Court

151 S.E. 733

198 N.C. 349

STATE v. BARKLEY.

No. 1.

Supreme Court of North Carolina

February 19, 1930

Appeal from Superior Court, Pasquotank County; Sinclair, Judge.

Blackwell Barkley was convicted of offering a bribe, and he appeals. Error.

This is a criminal action tried at November term, 1929, of the superior court of Pasquotank county, on an indictment returned by the grand jury for said term, charging that defendant on August 9, 1929, did willfully, unlawfully, and feloniously offer to L. R. Holmes, chief of police of Elizabeth City, N. C., a bribe with the corrupt intent to influence the said chief of police in the performance of his official duties, in violation of C. S. § 4373. The jury returned a verdict that defendant is guilty.

From judgment on the verdict that defendant be imprisoned in the State's Prison for a term of not less than two or more than three years, the defendant appealed to the Supreme Court.

C. E Bailey and Thos. J. Markham, both of Elizabeth City, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CONNOR J.

The indictment upon which the defendant in this action was arraigned was returned by the grand jury, which was drawn sworn, and impaneled on the 1st day of November term, 1929 of the superior court of Pasquotank county. The indictment was returned by the grand jury during the first week of said term.

Defendant's first assignment of error on his appeal to this court is based on his exception to the order of the trial judge denying his motion that the indictment be quashed, for that Charles E. Sanders, Jr., who was sworn and who served as a member of the grand jury by which the indictment was returned, was not a regular juror for the first week of the November term, 1929, of the superior court of Pasquotank county and for that he was not drawn as a grand juror for said term. This motion was made before the jury was sworn and impaneled to try the issue between the state and the defendant. It was made on defendant's arraignment, and before he entered a plea to the indictment. The motion was therefore made in apt time.

It is provided by statute in this state that "all exceptions to grand jurors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken, the same shall be deemed to be waived." C. S. § 2335. In State v. Paramore, 146 N.C. 604, 60 S.E. 502, it was held that the motion to quash the indictment in that case, made upon defendant's arraignment, and before he entered a plea to the indictment, was made in apt time. In that case the indictment was quashed because one of the members of the grand jury by which it was returned was not qualified to serve as a grand juror at the term of the court at which the indictment was returned.

Upon the hearing of defendant's motion in the instant case, the trial judge found the facts and concluded therefrom that Charles E. Sanders, Jr., was duly qualified to serve as a grand juror during the first week of said term. The motion was denied, and defendant duly excepted.

The regular jurors for the November term, 1929, of the superior court of Pasquotank county were drawn by the board of commissioners of said county in accordance with the provisions of the statute. C. S. § 2314. As required by statute, some of said jurors were drawn to serve during the first week and others were drawn to serve during the second week of said term. Among the jurors drawn to serve during the first week was Charles E. Sanders; he, however, was not summoned, and did not attend during the said first week, for the reason that he was absent from the state. Among the jurors drawn to serve during the second week was Charles E Sanders, Jr.; he was duly summoned by the sheriff to attend and serve as a juror during the second week. When the court convened on the first day of the term, Charles E. Sanders, Jr., attended. He was present in the courtroom when the names of regular jurors who were drawn to serve as grand jurors were called. The name of Charles E. Sanders was drawn as a grand juror; when his name was called, he did not answer. Charles E. Sanders, Jr., answered, and went into the jury box. He was sworn and served on the grand jury during the term until the grand jury was discharged. He was present and participated as a member of the grand jury when the bill...