State v. Bass
| Decision Date | 31 January 1880 |
| Citation | 82 N.C. 570 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. R. J. BASS and Samuel Jones. |
OPINION TEXT STARTS HERE
CERTIORARI granted on petition of defendants at January Term, 1880, of THE SUPREME COURT.
This was an indictment for burglary and larceny tried at Fall Term, 1879, of HALIFAX Superior Court, before Avery, J.
A nolle prosequi was entered as to the count for burglary, and the defendants were tried on the count for larceny. An appeal was taken from an interlocutory order of His Honor and dismissed in this court. Thereupon on petition of defendants an order was made to have a transcript of the record sent up. The facts material to the question decided are sufficiently stated in the opinion.
Attorney General and F. H. Busbee, for the State .
Messrs. Day & Zollicoffer and Mullin & Moore, for defendants .
In the case now before us the defendants were indicted and put to trial for larceny, and the jury not being able to agree, by order of the court a juror was withdrawn and a mistrial entered without the consent of the defendants, and thereupon they moved for their discharge, which was refused. Failing in that motion, they then requested His Honor to find and have entered of record the facts touching the discharge of the jury, and this being refused, the defendants brought the case to this court by certiorari.
The question presented is, whether in a case of larceny punishable by imprisonment in the states' prison or common jail, a jury sworn and charged with the case may or may not be discharged by the court before rendition of a verdict without the consent of the party on trial, and without the necessity, (with the facts found and spread on the record constituting it,) as is required in the case of capital felonies, or may be discharged in the discretion of the judge for reasons satisfactory to him not reviewable in this court.
It is the settled law of this state that in capital felonies a jury once sworn and possessed of the case of a prisoner upon a sufficient bill of indictment, cannot be discharged before verdict, except by consent of the prisoner or upon some great necessity; and not then unless the facts constituting the necessity be found and put on the record so as to be subject to review in this court on the application of the prisoner. State v. Jefferson, 66 N. C., 309; State v. Alman, 64 N. C., 364; State v. Honeycutt, 74 N. C., 391; State v. McGimsey, 80 N. C., 377.
To the rule thus established in capital cases, we yield our assent and accept the same as definitive and final, without inquiry into the authorities and reasons on which it is founded; so that it is only necessary that we should give attention to and decide how the rule is or ought to be in felonies below the grade of capital, and in misdemeanors. In these classes of offences, in our opinion, we are equally concluded by the weight of authority in our own state reports; so that we need do no more in the determination of the question brought under consideration by this appeal, than to decide how it has been settled as a North Carolina question.
In the case of the State v. Morrison, 3 Dev. & Bat., 115, which was for an assault, the jury not being able to agree, a mistrial was had by the withdrawal of a juror, and on refusal of defendant's motion for his discharge and appeal, it was held in this court that the power of the court in case of misdemeanors was analogous to their power in civil cases, and that it was competent to the courts in such cases to discharge the jury “whenever the circumstances of the case rendered such interference essential to the furtherance of justice.”
In the case of State v. Weaver, 13 Ired., 203, citing and approving the case of the State v. Morrison, which was also for a misdemeanor, it was decided that the court might make a mistrial without the consent of the accused, whenever in its discretion it should judge it necessary to the ends of justice, and that aside from the propriety of the exercise of the power, it being a matter of discretion, no court could interfere; and to this case there has been frequent reference in the subsequent decisions with approval, and conformably to the rules as therein laid down, has been the practice in misdemeanors ever since the decision was made. So we conclude that in the case of misdemeanors also the law is settled with us.
As to inferior felonies, it is true that the judges, in delivering the...
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Brock v. State of North Carolina
...rule. We are directed to State v. Dove, 1942, 222 N.C. 162, 22 S.E.2d 231; State v. Guice, 1931, 201 N.C. 761, 161 S.E. 533; State v. Bass, 1880, 82 N.C. 570; State v. Andrews, 1914, 166 N.C. 349, 81 S.E. 416; and State v. Ellis, 1930, 200 N.C. 77, 156 S.E. In the Guice case, the State intr......
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Goodman v. Goodman
...199 N.C. 364, 154 S.E. 626), or to prevent an alleged miscarriage of justice ( State v. Guice, 201 N.C. 761, 161 S.E. 533; State v. Bass, 82 N.C. 570), determination of motion at trial term to set aside verdict as contrary to the weight of the evidence (In re Beal, 200 N.C. 754, 158 S.E. 38......
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State v. Humbles
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State v. Guice, 546.
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