State v. Boykin, 146

• Decision Date: 11 October 1961
• Docket Number: No. 146,146
• Citation: 255 N.C. 432,121 S.E.2d 863
• Parties: STATE, v. Theodore BOYKIN.
• Court: North Carolina Supreme Court

Page 863

121 S.E.2d 863

255 N.C. 432

STATE, v. Theodore BOYKIN.

No. 146

Supreme Court of North Carolina.

Oct. 11, 1961

R. D. Johnson, Jr., Warsaw, J. T. Gresham, Jr., Jacksonville, for defendant-appellant.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The defendant seeks a new trial on each count in the indictment upon the ground the court committed error by (1) overruling his plea of former jeopardy, (2) admitting in evidence the defendant's confession, (3) permitting the State to introduce the order for the post-mortem examination.

The power of the presiding judge to order a mistrial in a criminal case after the jury has been impaneled, and before verdict, has been the subject of review by this Court beginning with State v. Garrigues, 2 N.C. 241. The many subsequent decisions dealing with the court's power to discharge a jury and order a new trial have been cited and analyzed by Parker, J., in State v. Cofield, 247 N.C. 185, 100 S.E.2d 355; by Bobbitt, J., in State v. Crocker 239 N.C. 446, 80 S.E.2d 243; by Stacy, C. J., in State v. Harris, 223 N.C. 697, 28 S.E. 2d 232; and in State v. Beal, 199 N.C. 278, 154 S.E. 604. 'It is only in cases of necessity in attaining the ends of justice that a mistrial may be ordered in a capital case without the consent of the accused.' [223 N.C. 697, 28 S.E.2d 235.]

In the light of our decisions, the defendant's objection to the order of mistrial in this case and his plea of former jeopardy based thereon cannot be sustained. Both he and his counsel of record consented to the order and signed it. However, in view of the condition of the judge's health, the order would have been valid even if the defendant and his counsel had objected. It goes without saying that a superior court trial cannot go on without a presiding judge. In this instance, before the State had completed its evidence, Judge Morris suffered a heart attack, a doctor was called immediately, and the Judge was removed from the courthouse to the hospital about 300 yards away. Immediately, he ordered the court recessed from day to day, hoping to recover sufficiently to continue the trial. However, on the third day after his admission, Judge Morris, from his hospital bed, made findings and ordered a mistrial heretofore quoted in full.

The findings of fact while terse and succinct, are amply sufficient to show necessity for the mistrial. This is so even under the rigid requirements in the early days of this State's judicial history and without the prisoner's consent. In State v. Ephraim, 19 N.C. 162; In Matter of Spiers, 12 N.C. 491, the rule is stated: '* * * that the jury cannot be discharged without the prisoner's consent, but for evident, urgent, overruling necessity, arising from some matter occurring during the trial, which was beyond human foresight and control; and generally speaking, such necessity must be set forth in the record.'

The rule has been subsequently relaxed: 'It is well settled, and admits of no controversy, that in all cases, capital included, the court may discharge a jury and order a mistrial when it is necessary to attain the ends of justice. It is a matter resting in the sound discretion of the trial judge; but in capital cases he is required to find the facts fully, and place them upon [the] record so that upon a plea of former jeopardy, as in this case, the action of the court may be reviewed.' State v. Beal, supra [199 N.C. 278, 154 S.E. 614]. The plea of former jeopardy was properly overruled.

By his second assignment of error the defendant challenges the admission of his confession. The record recites: 'After hearing evidence in the absence of the jury, Judge Fountain overruled the objection, holding that whatever the prisoner said was voluntary.' The record does not disclose what evidence the judge heard in the absence of the jury. It is presumed, therefore, the evidence was sufficient to sustain the finding.

After Mr. Hartley testified, the defendant moved to strike his testimony....