State v. Carland

• Citation: 90 N.C. 668
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1884
• Parties: STATE v. J. MARION CARLAND.

90 N.C. 668

STATE

v.J. MARION CARLAND.

Supreme Court of North Carolina.

February Term, 1884.

INDICTMENT for murder tried at Spring Term, 1884, of HENDERSON Superior Court, before Graves, J.

This case was removed from Buncombe, and the whole record was made a part of the statement of the case on appeal. When the solicitor for the state announced his readiness for trial, the prisoner moved for his discharge upon the ground that he had heretofore been in jeopardy upon the same charge which he was then called upon to answer. Motion overruled, and the prisoner excepted.

The prisoner then moved the court to adjudge upon the record that he had heretofore been tried and acquitted of the crime charged in the indictment, and that, having been so acquitted, he could not be put upon another trial for any offence under this bill of indictment. Motion overruled, and the prisoner excepted.

The prisoner asked the court to adjudge upon the record that he had been heretofore acquitted of the charge of murder, and to adjudge that he could not then be put on his trial for any greater offence than manslaughter. His Honor overruled this motion, and directed the trial to proceed upon the charge of murder as preferred in the indictment. Prisoner excepted.

To sustain the preceding motions, the prisoner relied upon the record of the proceedings had before Judge Avery in the superior court of Buncombe, before the case was transferred to Henderson county, in which it appeared that a mistrial had been ordered upon the ground that the jury were unable to agree upon a verdict. The facts in reference to this are stated in the opinion here.

In selecting the jury, one Dalton, summoned on the special venire, was challenged, and being sworn on his voir dire, said, “I owe one tax; I have paid all except the last tax.” The judge was of opinion that it did not appear that the juror had not paid his tax for the preceding year, and adjudged the cause of challenge insufficient. The peremptory challenges allowed to the prisoner were exhausted before the jury was completed. The prisoner excepted.

Upon proceeding to empanel the jury, the prisoner asked that the entire record be read in the hearing of the court and jury. The court directed the bill of indictment and so much of the record as was necessary to show the jurisdiction of the court to be read, and that no more should be. The prisoner excepted, insisting that the whole transcript should be read.

There was only one exception taken to the instructions given to the jury: The evidence as to the killing was full, tending to show a legal provocation by an assault and mutual combat, and that the prisoner acted upon the principle of self-defence. The court charged the jury that “when the law devolves upon the prisoner the burden of proof, it relaxes the rule as to the degree of proof; for while the prosecution is held to the rigid rule, and required to satisfy the jury beyond a reasonable doubt, when the prisoner comes to show his matters of excuse or mitigation, he is not required to prove these matters beyond a reasonable doubt, but he is required to prove them to the satisfaction of the jury, but the degree of proof is not so far relaxed that he may establish his matters of excuse or mitigation by a bare preponderance of proof, but must do so to the satisfaction of the jury.” This instruction was excepted to upon the ground the court charged that a greater degree of proof was required of the prisoner in showing excuse or mitigation than a bare preponderance of the evidence.

The jury found the prisoner guilty of manslaughter, and he appealed from the judgment pronounced.

Attorney-General, for the State .

Messrs. M. E. Carter, J. H. Merrimon and Reade, Busbee & Busbee, for prisoner .

ASHE, J.

The first three exceptions taken by the prisoner related to the right claimed by him to be discharged by consequence of the proceedings had, when he was theretofore on trial under the same bill of indictment, in the superior court of Buncombe county, before the case was removed to the county of Henderson. They embrace these grounds:

1. That he had theretofore been put in jeopardy of life for the same offence.

2. That he had been acquitted of every offence charged in the bill of indictment, and that he could not again be put on trial for any offence charged in the bill of indictment.

3. That he had been theretofore acquitted of the crime of murder, and that he could not be put on trial again for any greater offence than manslaughter.

There is no force in any of these exceptions: As to the jeopardy, it is now well settled that even in capital trials the superior courts have the power to grant a mistrial whenever a proper case occurs for its exercise. And whenever a judge undertakes to exercise the power, he must distinctly find the facts and set them out in the record. When he does so, the facts are conclusive, but the law is reviewable. State v. McGimsey, 80 N. C., 377.

In this case the judge carefully complied with the requirements of the law. He finds as facts, that the case was committed to the jury in the afternoon of Friday, March 23, 1883, being Friday of the second week of the term. The jury were put in charge of a sworn officer, and were kept together until Saturday, March 31, 1883, being Saturday of the third and last week of the term, about four o'clock in the afternoon, when the jury were brought into court, and polled in presence of the prisoner, and in response to questions propounded to each juror by the court, six of the jurors said that the prisoner was not guilty, and six said he was not guilty of murder, but was guilty of the felonious slaying. The jury asked for further instructions, and the court, after instructing them upon the point about which instructions were asked, sent them out again in charge of the officer, and entered an order upon the minutes of the term that the term of the court should be prolonged until Monday, April 2, 1883, unless the jury should sooner agree as to their verdict. On Monday, April 2, 1883, at ten o'clock A. M., the jury came into court, and they were again polled, and seven of them said the prisoner was not guilty, and five of them said he was not guilty of murder but was guilty of the felonious slaying. And all of the jury, being severally interrogated by the court, declared that they did not believe the jury would ever agree. The court found as a fact that the jury could not agree, and thereupon ordered that a juror be withdrawn and a mistrial had.

There is no error in this ruling. His Honor strictly complied with the requirements of the law, and the facts of the case as found by him, without question, warranted the course pursued. State v. Jefferson, 66 N. C., 309; State v. Washington, 89 N. C., 535; State v. Honeycutt, 74 N. C., 391. In the latter case the jury had the case six days, and on Saturday of the second week of the term came into court, and, being polled, it was found as a...