State v. Brogden

• Decision Date: 17 November 1892
• Citation: 16 S.E. 170,111 N.C. 656
• Parties: STATE v. BROGDEN.
• Court: North Carolina Supreme Court

16 S.E. 170

111 N.C. 656

STATE v. BROGDEN.

Supreme Court of North Carolina

November 17, 1892

Appeal from superior court, Wayne county; BRYAN, Judge.

Indictment against Willis H. Brogden. Defendant was convicted, and appeals. Affirmed.

Where a jury in a criminal case is obtained from the regular panel and special venire without exhausting defendant's peremptory challenges, he cannot object that the special venire was improperly granted.

The Attorney General, for the State.

CLARK, J.

It rests in the discretion of the trial judge to order a special venire in capital cases, and likewise to determine its number. Code, § 1738. It is equally in his discretion subsequently to amend the order so as to increase or decrease the number of such venire. In this case certainly the prisoner had no cause to complain, as the jury was obtained from the regular panel and the reduced venire without exhausting the prisoner's peremptory challenges. State v. Hensley, 94 N.C. 1021; State v. Pritchett, 106 N.C. 667, 11 S.E. Rep. 357. But, had the venire proved insufficient, the statute (Code, § 1739) provides that the judge, in his discretion, could have ordered a furthervenire to be drawn from the box or summoned by the sheriff. The practice of drawing the special venire from the box is one to be commended, and is favored by the courts. It is a wise and safe course which trial courts will usually do well to observe. The act authorizing it (Code, § 1739) was passed by the legislature to remove the occasion for scandals which at times had crept into the administration of justice in trials for capital offenses. There may be instances in which, in the exercise of a wise discretion, the court need not observe it; hence the act was not made mandatory. We see no ground for the objection to the admission of the dying declarations of the deceased. The ruling of the judge was fully justified by the evidence. State v. Williams, 67 N.C. 12; State v. Mills, 91 N.C. 581. No error.