State v. Crocker

• Decision Date: 24 February 1954
• Docket Number: No. 78,78
• Citation: 239 N.C. 446,80 S.E.2d 243
• Parties: STATE, v. CROCKER.
• Court: North Carolina Supreme Court

Page 243

80 S.E.2d 243

239 N.C. 446

STATE, v. CROCKER.

No. 78

Supreme Court of North Carolina.

Feb. 24, 1954

J. Faison Thomson & Son, N. W. Outlaw, Goldsboro, Sharpe & Braswell, Wilson, and Robert Cowen, Williamston, for defendant-appellant.

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

BOBBITT, Justice.

Decision here depends upon whether the facts found by Parker, J., disclose necessity sufficient to justify the order of mistrial over the objection of the defendant. In sharper focus, the question is whether the facts found relating to the time, nature and duration of the misbehavior or disability of certain of the jurors are such as to warrant the order of mistrial over the objection of the defendant. If so, the defendant's plea of former jeopardy was properly overruled and the judgment must be affirmed. If not, the defendant's plea of former jeopardy must be sustained and the defendant discharged.

It is a fundamental and sacred principle of the common law, deeply imbedded in our criminal jurisprudence, that no person can be twice put in jeopardy of life or limb for the same offense. State v. Prince, 63 N.C. 529; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871. It was incorporated in the Bill of Rights of the Federal Constitution. United States Constitution, Amendment V. While the principle is not stated in express terms in the North Carolina Constitution, it has been regarded as an integral part of the 'law of the land' within the meaning of Art. I, sec. 17. State v. Mansfield, 207 N.C. 233, 176 S.E. 761.

As stated by Stacy, C. J.: 'Jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case.' State v. Bell, 205 N.C. 225, 171 S.E. 50, 52.

Here the defendant was put in jeopardy for the capital felony of murder in the first degree at the May Term, 1953. The second trial (September Term, 1953) was a trial for murder in the first degree upon the identical bill of indictment.

It is well established that the plea of former jeopardy cannot prevail on account of an order of mistrial when such order is entered upon motion or with the consent of the defendant. State v. Davis, 80 N.C. 384; State v. Dry, 152 N.C. 813, 67 S.E. 1000. However, this rule has no application here.

In the earlier cases the rule as stated by Ruffin, C. J., in State v. Ephraim, 19 N.C. 162, was that, in the absence of the defendant's consent, the trial judge had no authority to discharge the jury and hold the defendant to await a second trial '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.' (Emphasis supplied.) See State v. Garrigues, 2 N.C. 241; In re Spier, 12 N.C. 491.

As pointed out by Stacy, C. J., in State v. Beal, 199 N.C. 278, 294, 295, 154 S.E. 604, 614, the rule has been greatly relaxed; and it has been recognized that the necessity justifying an order of mistrial may be one of two kinds, "physical necessity and the necessity of doing justice"'.

The two kinds of necessity, i. e., 'physical necessity' and the 'necessity of doing justice' were so classified by Boyden, J., in State v. Wiseman, 68 N.C. 203. As to 'physical necessity,' he said: 'One class may not improperly be termed physical and absolute; as where a juror by a sudden attack of illness is wholly disqualified from proceeding with the trial; or where the prisoner becomes insane during the trial, or where a female defendant is taken in labor during the trial.' As to 'necessity of doing justice,' he said that this arises from the duty of the court to 'guard the administration of justice from fraudulent practices; as in the case of tampering with the jury, or keeping back the witnesses on the part of the prosecution.'

It will be observed that 'the necessity of doing justice' is not an expression connoting a vague generality but one that relates to a limited subject, namely, the occurrence of some incident of a nature that would render impossible a fair and impartial trial under the law. In State v. Wiseman, supra, the basis for mistrial was 'tampering with the jury.' In State v. Bell, 81 N.C. 591, and in State v. Washington, 89 N.C. 535, 45 Am.Rep. 700, a juror had fraudulently procured himself to be put on the jury for the purpose of acquitting the defendant in a trial for murder. In State v. Cain, 175 N.C. 825, 95 S.E. 930, a juror had given a false answer to the solicitor bearing upon his fitness and qualifications to serve as a juror. In State v. Upton, 170 N.C. 769, 87 S.E. 328, it was discovered that a juror was disqualified because of nonresidence. As stated by Ashe, J., in State v. Bell, 81 N.C. 591, it is the duty of the trial judge 'to see that there is a fair and impartial trial, and to interpose his authority to prevent all unfair dealing and corrupt or fraudulent practices on the part of either the prosecution or the defense.'

Cases where the order of mistrial is predicated upon physical necessity, i. e., the inability of a juror to continue to serve, include State v. Beal, supra, where a juror became insane; State v. Tyson, 138 N.C. 627, 50 S.E. 456, where a juror was intoxicated to such extent that he could not continue to serve; State v. Scruggs, 115 N.C. 805, 20 S.E. 720, where a juror became too ill to continue to serve.

The rule recognized and restated in many cases is succinctly expressed by Pearson, C. J., in State v. Jefferson, 66 N.C. 309, as follows: 'It is settled that in a trial for a capital felony for sufficient cause the Judge 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 in the record, so that his conclusion as to the matter of law arising from the facts may be reviewed by this Court.' (Emphasis supplied.) While it is stated repeatedly that the order of mistrial, even in capital cases, is a matter resting in the sound discretion of the trial judge, it is equally well settled that the findings of fact must be sufficient to warrant the exercise of this discretionary authority. State v. Tyson, supra.

Now we come to the critical task. Do the facts found by Parker, J., at May Term 1953, constitute a sufficient basis for the order of mistrial either on the ground of 'the necessity of doing justice' or on the ground of 'physical necessity?' We are constrained to hold that they do not.

It is not suggested in the findings of fact that the jurors or any of them were disqualified on grounds of incompetence or of fraudulent practice, or that any improper influence had been brought to bear upon them relating to the case. The incident involving certain of the jurors, upon which the order of mistrial was predicated, was an isolated incident during a long trial. It occurred in the hotel during the night while the court was in recess. Three of the jurors were intoxicated to some extent. One was in worse condition than the others. It took took some thirty minutes before the unruly juror could be quieted. There is no suggestion that any juror at any time when the court was in session was under any disability on account of intoxicants or otherwise. Nor is there...