State v. Bell

• Citation: 81 N.C. 591
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1879
• Parties: STATE v. FRANK BELL.

81 N.C. 591

STATE

v.FRANK BELL.

Supreme Court of North Carolina.

June Term, 1879.

PETITION for a Certiorari filed by the Prisoner and granted at June Term, 1879, of THE SUPREME COURT.

The prisoner was put upon trial for murder at Spring Term, 1879, of PITT Superior Court, before Seymour, J.

After the jury were sworn and impaneled, His Honor upon the facts set out in the opinion of this court ordered a mistrial, refused to discharge the prisoner, and remanded him to jail to be held for another trial. And thereupon the prisoner obtained a writ of certiorari to bring up the record and review the ruling of the court below. Upon the argument here, the state relied mainly upon Wiseman's case, 68 N. C., 203.

Attorney General, for the State .

Messrs. Gilliam & Gatling, for the prisoner .

ASHE, J.

The prisoner was indicted at spring term, 1879, of the superior court of Pitt county, with Reuben Harris, for the murder of one John Briley. Harris was charged in the indictment as principal, and the prisoner as being present, aiding and abetting the said Harris in the said felony and murder. On their arraignment they plead not guilty, and a special venire was issued, and from those returned a jury of twelve men were drawn, sworn and impaneled to try the issue between the state and the prisoners.

After the jury were charged with the prisoners but before any evidence was offered by the state, the solicitor for the state moved for a mistrial as to the prisoner, Bell; and in support of his motion introduced two witnesses, to wit, one Forbes and one Harrington, from whose testimony His Honor found the following facts:

1. “That J. G. Bell, the brother of the prisoner, Frank Bell, was his agent in conducting the defence.”

2. “That by the consent and procurement of the prisoner, Bell, one Naseby Mills, who had previously, as was known to the said prisoner, been engaged in assisting him in his defence, was procured and impaneled as a juror. That said Naseby Mills by the procurement of said prisoner, procured himself to be sworn upon the jury by taking a false oath, viz: that he had not formed and expressed an opinion that prisoner was not guilty, when in fact he had formed and expressed such opinion, for the purpose of acquitting the prisoner.”

And from these facts the court found as conclusions of law:

1. That the jury were by the fraud of the prisoner impaneled with the view of securing his acquittal.

2. That said prisoner was never in jeopardy.

Thereupon the court ordered a mistrial as to the prisoner Bell, to which he excepted. The prisoner then moved for his discharge, which was refused, and he was remanded to jail for another trial, and his case was brought to this court by a writ of certiorari.

It is insisted that His Honor committed an error in ordering a mistrial and refusing to discharge the prisoner. The facts found are conclusive and not the subject of review in this court, but the conclusions of law from them are reviewable. State v. Prince, 63 N. C., 529; State v. Jefferson, 66 N. C., 309; State v. McGimsey, 80 N. C., 377. And the question for our consideration is, whether His Honor's reason for refusing to discharge the prisoner was sufficient.

It is a well established and is a sacred principle of the common law, that a man cannot be put twice in jeopardy of life or limb; and the same principle has been declared in the constitution of the United States. Hawkins lays it down that a jury sworn and charged in a capital...