State v. Dalton
| Decision Date | 02 May 1934 |
| Docket Number | 122. |
| Citation | 174 S.E. 422,206 N.C. 507 |
| Parties | STATE v. DALTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Henderson County; Schenck, Judge.
Joe E Dalton was convicted of murder, and he appeals.
No error.
The prisoner was indicted for the murder of his wife, Zula Dalton, and from a sentence of death pronounced upon a verdict for murder in the first degree he appealed, assigning error.
There is evidence tending to show, not only that the prisoner was given to the habitual use of liquor and drugs, but that he was a man of immoral character. He had been arrested on sundry charges of crime, including liaison with a woman named Jones. His wife had refused to live with him. On Sunday, May 28, 1933, she was at the home of Mrs. H. K. Duncan, one block from Main street in Hendersonville. In the afternoon Mrs Duncan and Mrs. Dalton went to ride in the former's car Mrs. Dalton driving. On the highway leading to Asheville at a place referred to as Strawberry's, about two miles from Hendersonville, the prisoner passed them in a car driven by George Whitaker. In a few minutes he and Whitaker returned to Strawberry's, and in an interview with his wife he learned that she would probably never live with him again. In the car driven by Whitaker he returned to Hendersonville bought a pistol from one man and cartridges from another under the false representation that he was required as an employee of the State Highway Commission to carry such a weapon.
Armed with the pistol, which was loaded and ready for use, he sought his wife at Mrs. Duncan's about 7 o'clock in the evening. He went into the sitting room there, called his wife out, took her into the yard. "Just in a second" his wife was heard to exclaim: A shot was fired; then "several rapid shots." Mrs. Duncan ran out screaming and saw the prisoner firing the shots. Mrs. Dalton fell to the ground, "stretched out as if dead," and the prisoner came up near her shoulder, fired the pistol, stepped off, put the weapon to his head, "snapped the gun and walked off." Mrs. Dalton was taken to a hospital, and the attending physician found a wound at the base of the skull, one through the scapula of the right shoulder, and another through the shoulder. She died on the following Sunday morning. The wound at the base of the brain caused her death.
The defense was insanity induced by continuous and excessive use of whisky and morphine. The prisoner said he had bought the pistol to take his own life. He testified: There was evidence in contradiction.
Such additional facts as are necessary are referred to in the opinion.
In prosecution for murder of wife, inadvertent admission of testimony that witness heard somebody fussing at accused's home and informed deputy sheriff, and that some days afterward he saw deceased and her eyes were dark, held insufficient cause for new trial.
Redden & Redden and R. L. Whitmire, all of Hendersonville, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
Upon his arraignment the prisoner moved to quash the indictment on the ground of illegality in the organization of the grand jury, and excepted to the court's denial of his motion.
By an act ratified on March 18, 1931, section 2334 of the Consolidated Statutes (Supp. 1924) was made applicable to Henderson county. Pub. Laws 1931, c. 131. It was thereby provided that at the first fall and spring terms of the criminal courts grand juries should be drawn to serve respectively during the remaining fall and spring terms; that is, for a term of six months. A panel was to be drawn from the jury box at least twenty days before each regular or special term of the superior court and a grand jury was to be drawn except at terms which were special or confined to the trial of civil cases. C. S. §§ 2314, 2333. In compliance with section 2314, a jury was drawn to serve at a term commencing on October 9, 1933, and from these jurors was chosen a grand jury by whom the indictment in the present case was found and returned.
At the session of 1933 the General Assembly repealed chapter 131, Public Laws 1931, and amended section 2334 by providing that a grand jury should be drawn at the spring term of the criminal court of Henderson to serve for twelve months. Pub. Laws 1933, c. 92 (sections 1, 2). The phrase "spring term of the criminal court" obviously refers to the first spring term. The first spring term of 1933 for the trial of civil and criminal actions in Henderson county convened on January 16. C. S. § 1443, as amended. Chapter 92, supra, went into effect March 2, 1933, and did not in any respect affect the organization of the grand jury that had previously been chosen. Nor did it have any relation to the grand jury which was constituted in the fall. Section 2334 provides that grand jurors chosen to serve for twelve months shall be drawn "at the spring term of the criminal court," the first spring term succeeding the enactment of chapter 92. The prisoner's construction of these acts would result in the abolition of all courts held in Henderson county in the fall of 1933, and this evidently was not the intention of the General Assembly. In the denial of the motion to quash there was no error.
The second, third, and twenty-ninth exceptions are addressed to the selection of an "alternate" juror. The statute empowers the judge presiding in the superior court, when it appears that the trial is likely to be protracted, to direct, after the jury is impaneled, that an additional or alternate juror be selected, sworn, and seated near the jury and given equal opportunity to see and hear the proceedings. The alternate juror must be kept with the jury, must at all times attend upon the trial, and must obey all orders and admonitions given by the court to the jury; and if before submission of the case to the jury a juror dies or becomes incapacitated or disqualified, the alternate juror by order of the judge shall become one of the jury and shall serve as if selected as an original juror. Pub. Laws 1931, c. 103. [1]
After the jury had been impaneled, G. D. Davis under an order of the court was drawn as alternate juror and was sworn and impaneled in like manner with the other jurors to serve, however, only in case of necessity. At the conclusion of the charge and before the jury had retired for deliberation, the court made the following entry: "It having been made to appear to the court that the juror Thomas Mabry is sick and incapacitated, the alternate juror, G. D. Davis, is placed in his stead."
Upon exceptions duly noted the prisoner assails this proceeding as unconstitutional and as unsupported by sufficient findings of fact. The latter assignment, we presume, has reference to the omission of a preliminary finding that the trial would likely be protracted. There was cause to believe that the trial would be protracted. It began on Wednesday and continued until the following Sunday; and as no request for such finding was made by the prisoner, we must assume upon authoritative decisions that the order was based upon such facts as are essential to its support. Commissioner of Revenue v. Brown Realty Co., 204 N.C. 123, 167 S.E. 563; State v. Harris, 204 N.C. 422, 168 S.E. 498; Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287.
It is argued that the proceeding is unconstitutional because the act of 1931, which provides for an alternate juror, is forbidden by the Declaration of Rights: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court." Const. art. 1, § 13.
It is not questioned either that trial by jury is deeply rooted in our institutions or that the term "jury," as understood at common law and as used in the Constitution, imports a body of twelve men duly summoned, sworn, and impaneled for the trial of issues joined between litigants in a civil action or for the determination of facts adduced for and against the accused in a criminal case. Whitehurst v. Davis, 3 N. C. 113; State v. Scruggs, 115 N.C. 805, 20 S.E. 720; State v. Rogers, 162 N.C. 656, 78 S.E. 293, 46 L. R. A. (N. S.) 38, Ann. Cas. 1914A, 867; State v. Berry, 190 N.C. 363, 130 S.E. 12. The trial proceeds in the presence and under the supervision of a judge authorized to instruct the jury in matters of law; and the word ""convicted," as used in section 13 of the Declaration of Rights (article 1), is qualified by the phrase "but by the unanimous verdict of a jury * * * in open court." Construing this section in State v. Alexander, 76 N.C. 231, 22 Am. Rep. 675, the court said: "Nothing can be a conviction but the verdict of the jury." Cf. Smith v. Thomas, 149 N.C. 100, 62 S.E. 772; State v. Branner, 149 N.C. 559, 63 S.E. 169; State v. Brinkley, 193 N.C. 747, 138 S.E. 138. We are therefore confronted with the question whether the verdict establishing the prisoner's guilt was returned by a jury composed of twelve ""good (or free) and lawful men", (liberos et legales homines); and in this inquiry the functions of the alternate juror are necessarily involved.
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