State v. Cody

Decision Date21 December 1896
Citation119 N.C. 908,26 S.E. 252
CourtNorth Carolina Supreme Court
PartiesSTATE. v. CODY et al.

Amendment of Indictment—Direction for Special Venire—Escape of Prisoner— Dismissing Appeal.

1. Where one convicted of a crime has escaped, and has been for more than two years, and still is, at large, his appeal, continued from term to term in the meantime, will be dismissed.

2. For the judge, in ordering a special venire, to direct that there be summoned only freeholders not belonging to certain classes, is not error, the classes designated being subject to challenge for cause.

3. A defendant cannot complain of amendment of the indictment, made at his instance, and with his consent, in open court, acting under advice of his counsel.

Appeal from superior court, Madison county; Shuford, Judge.

George Cody and others were convicted of a crime, and appealed. Dismissed.

J. M. Gudger, for appellants.

The Attorney General, for the State.

CLARK, J. In State v. Anderson, 111 N. C. 689, 16 S. E. 316, it is held, approving State v. Jacobs, 107 N. C. 772, 11 S. E. 962, that "where a prisoner who had been convicted of a capital felony escapes from custody, and is at large when his appeal is called for trial, this court may, in the exercise of a sound discretion, dismiss the appeal, or hear and determine the assignments of error, or continue the case"; and in that case the appeal was dismissed. In the present instance we have heretofore pursued the latter of the three courses indicated, having continued the cause till this, the fifth, term. The prisoners not yet having returned after the lapse of more than two years' indulgence, we now adopt the first course, and dismiss the appeal. Besides, upon looking into the record, we find there were only two assignments of error, neither of which is a valid objection. The first is that when the court ordered a special venire the judge directed the sheriff "to summons, as far as possible, only freeholders, men who had paid their taxes for the preceding year, who had not served on the jury within the last two years, who had no suits pending and at issue in the court, and who were not under indictment in the court." The order was unobjectionable, for the classes named were subject to challenge for cause, and the venire, asfar as possible, should consist of men qualified to serve. To incumber the venire with those thus specified would simply restrict the number of legales homines from whom the jury was to be taken. The very object of a...

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18 cases
  • State v. Levy
    • United States
    • North Carolina Supreme Court
    • April 16, 1924
    ...92 N. C. 831; State v. Kilgore, 93 N. 0. 533; State v. Starnes, 94 N. C. 973; State v. Powell, 94 N. C. 965; State v. Cody, 119 N. C. 908, 26 S. E. 252, 56 Am. St. Rep. 692. It should be observed that no ruling relating to the qualification of jurors and growing out of challenges to the pol......
  • State v. Levy
    • United States
    • North Carolina Supreme Court
    • April 16, 1924
    ...v. Whitfield, 92 N.C. 831; State v. Kilgore, 93 N.C. 533; State v. Starnes, 94 N.C. 973; State v. Powell, 94 N.C. 965; State v. Cody, 119 N.C. 908, 26 S.E. 252, 56 Am. St. Rep. 692. It should be observed that no ruling relating to the qualification of jurors and growing out of challenges to......
  • State v. Register
    • United States
    • North Carolina Supreme Court
    • December 18, 1903
    ... ... commended in State v. Brogden, 111 N.C. 656, 16 S.E ... 170. Other cases are State v. Moore, 120 N.C. 570, ... 26 S.E. 697; State v. Dixon, 131 N.C. 808, 42 S.E ... 944; State v. Utley, 132 N. C., at page 1032, 43 ... S.E. 820. In State v. Cody, 119 N.C. 908, 26 S.E ... 252, 56 Am. St. Rep. 692, the court said, "It is not ... error in the trial judge, when ordering a special venire, to ... direct the sheriff to summon only freeholders," and in ... the present case the judge ascertained that fact himself, ... instead of leaving it to ... ...
  • State v. Williams, 495
    • United States
    • North Carolina Supreme Court
    • March 3, 1965
    ...recapture of the fugitive, and, upon motion of the Attorney General, this Court in its discretion dismissed the appeal. In State v. Cody, 119 N.C. 908, 26 S.E. 252, the defendants were convicted of burglary, sentenced, and appealed to the Supreme Court. Before the appeal was called for argu......
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