State v. Cain

• Decision Date: 15 May 1918
• Docket Number: 465.
• Citation: 95 S.E. 930,175 N.C. 825
• Parties: STATE v. CAIN.
• Court: North Carolina Supreme Court

95 S.E. 930

175 N.C. 825

STATE v. CAIN.

No. 465.

Supreme Court of North Carolina

May 15, 1918

Appeal from Superior Court, Rowan County; Cline, Judge.

Baxter Cain was convicted of murder in the first degree, and he appeals. No error.

In prosecution for first degree murder, testimony held merely corroboration of witness' own testimony, and competent.

The first exception is to the order of the court withdrawing a juror and making a mistrial, and exception 8 is to the refusal to grant a motion in arrest of judgment on the ground of the defendant's former jeopardy. On these motions his honor found the following facts:

This was an indictment against Baxter Cain, the defendant charging him with murder in the first degree, No. 25 on the criminal docket of the September term, 1917, Rowan superior court. The case was set down for trial and called for trial on Tuesday, the 11th day of September, 1917, at which time the state announced its readiness and the prisoner his readiness. A special venire of 50 men had been summoned to appear as jurors under the statute. While the jury was being drawn, a regular juror, to wit, M. A. Goodman, whose name was drawn from the hat, appeared and was asked by the solicitor for the state whether or not he had any conscientious or religious scruples against returning a verdict, where the penalty would be the death sentence upon circumstantial evidence, if such evidence warranted, and the juror answered that he had not; thereupon he was passed by the state and accepted by the defendant and was sworn as a juror, being No. 3. Other names were called and a jury of 12 was chosen, sworn, and impaneled, as is usual in capital cases. Immediately after the jury was finally impaneled this juror, M. A. Goodman, arose in his seat and stated to the court that he did not understand the question that was asked by the solicitor. He stated that his convictions were such that he would not render a verdict of guilty of murder in the first degree in any case upon circumstantial evidence. He was further questioned, and the solicitor stated that he was relying for a verdict in this case upon circumstantial evidence, and again asked the juror if he would convict if the evidence was sufficient in such a case, and he stated that he would not. He further stated in response to further questions by the court, that his feelings were such that he would not bring in a verdict of murder in the first degree upon circumstantial evidence solely. He further stated to the court that he was sorry not to have made this statement sooner. The court asked him if he had not heard the same question asked of other jurors whose names were drawn from the hat, and he said that he had, and he was then asked why he did not make his feelings and convictions known to the court before the cause had proceeded to this length; he replied that he was diffident about the matter, and hesitated to speak out, and now felt that he was himself to blame.

Upon these findings of fact, the solicitor asked that the court direct a mistrial, and the court being of the opinion that such a course was necessary and absolutely required to attain the ends of justice, in order that the state and the defendant might both have a trial before a jury of competent jurors and not disqualified by their seated convictions and prejudgment, whether those convictions be conscientious or religious, and in order that the ends of justice might be attained, ordered a mistrial, and, having withdrawn a juror, to wit, J. L. Holshouser, in so far as the withdrawal of a juror may be necessary, and having discharged the present jury, proceeded to make further provision for the trial of the cause as though no jury had ever been drawn, chosen, or impaneled, and to this in due time the defendant at the bar excepted."

From the verdict and sentence the prisoner appealed.

A. H. Price, W. C. Coughenour, Jr., and T. H. Vanderford, all of Salisbury, for appellant.

The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.

CLARK C.J.

The exception to the action of the court in ordering a mistrial and to the refusal of the motion in arrest of judgment on the plea of former jeopardy present the same question, and this is the chief ground relied upon on the appeal. When the juror Goodman was asked by the solicitor of the state--

"whether or not he had any conscientious or religious scruples against returning a verdict, where the penalty would be the death sentence, upon circumstantial evidence, if such evidence warranted, and the juror answered that he had not, he was passed by the state, and, being accepted by the prisoner, he was sworn as a juror."

The court further finds:

"Immediately after the jury was finally impaneled, this juror, M. A. Goodman, arose in his seat and stated to the court that he did not understand the question that was asked by the solicitor. He stated his convictions were such that he would not render a verdict of guilty of murder in the first degree in any case upon circumstantial evidence. He was further questioned, and the solicitor stated that he was relying for a verdict in this case upon circumstantial evidence, and again asked the juror if he would convict if the evidence was sufficient in such a case, and he said he would not."

He was then examined by the court, and reiterated this statement, expressing his regret that he had not made this statement sooner, and said he had not done so "because he was diffident about the matter, and hesitated to speak out, and now felt that he was himself to blame." Upon the findings of fact, which are above set out in full in the statement of the case, the solicitor asked the court to direct a mistrial, and "the court, being of the opinion that such a course was necessary and absolutely required to attain the ends of justice, in order that the state and the defendant might both have a trial before a jury of competent jurors, and not disqualified by seated convictions and prejudgment, whether those convictions be conscientious or religious, and in order that the ends of justice might be attained," withdrew a juror and ordered a mistrial, and, having discharged the jury, proceeded to draw and impanel another jury, as though no jury had ever been drawn, chosen, or impaneled.

The object of a trial being expressed in the oath of a juror to "do equal and impartial justice between the state and the prisoner at the bar," it is impossible that the judge could have taken any other action. The object of a trial is to acquit the innocent and to convict the guilty. Neither can be done with any certainty when the juror states frankly under oath that he cannot find a verdict according to the law and the evidence. It was unfortunate that the juror should not have made this statement on his voir dire, but it is to his credit that he made it at least before there was a long trial and a miscarriage of justice by a hung jury, as would doubtless have been the result. In England there were, till after the year 1800, 204 offenses which were punishable capitally; and until within the last 20 years there was no appeal by the prisoner in England from conviction in any criminal case: Indeed, until within the last 100 years (in 1836) in felonies defendants were not allowed counsel to speak for them, nor process to compel the attendance of witnesses in their behalf. In view of such disadvantages, the courts, where there seemed to be extenuating or doubtful circumstances, went sometimes far to sustain technicalities as to indictments, and acquittals on the ground of former jeopardy, or on other grounds. It is probable that the judges exercised their discretion in such matters with some regard to the development of the facts in each case.

In this state this was not necessary, and we have long since had statutes forbidding the allowance of technical defenses as to the form of indictments and in other matters. Revisal, §§ 3254, 3255. As to capital offenses the law with us has long been also well settled that:

"In a trial for capital felony, the judge for sufficient cause may discharge the jury and hold the prisoner for another trial, in which case it is his duty to find the facts and set them out on the record, and his conclusions upon matters of law arising from the facts may be reviewed by this court." State v. Jefferson, 66 N.C. 309, citing State v. Prince, 63 N.C. 529, State v. Alman, 64 N.C. 364, and State v. Baker, 65 N.C. 332.

In State v. Wiseman, 68 N.C. 203, the court said:

"It must now be considered as settled law in our state that in cases of necessity a mistrial may be ordered, even in capital cases. The term 'necessity,' as used in this connection, must be regarded rather as a technical term, and includes quite distinct classes of necessity."

The court then explains that the necessity applies, not only to cases of a physical nature, as illness or insanity of a juror,...