State v. Dixon
| Citation | 2 S.E.2d 371,215 N.C. 438 |
| Decision Date | 19 April 1939 |
| Docket Number | 361. |
| Parties | STATE v. DIXON. |
| Court | North Carolina Supreme Court |
A written confession, purporting to be signed by the defendant and introduced in evidence by the State, reads:
The defendant offered no evidence.
The defendant was convicted of murder in the first degree, and from judgment of death appealed, assigning errors.
E Johnston Irvin and Robert H. Irvin, both of Concord, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and Robert H. Wettach Asst. Attys. Gen., for the State.
The exceptive assignments of error may be discussed in four groups.
The first group of assignments of error relate to the failure of the court to sustain challenges to certain veniremen who, on the voir dire, testified in effect that they had, from what they had heard and read, formed the opinion that the defendant was guilty, but that they could disabuse their minds of such opinion and go in the jury box and give the defendant a fair and impartial trial upon the evidence produced.
The Court, after hearing the testimony, in each case found that the venireman was a fair and competent juror, and permitted him to become one of the panel. The finding that a juror is a fair one, though he has formed and expressed an opinion, is a matter in the discretion of the trial judge and is not reviewable on appeal. State v. Banner, 149 N.C. 519, 520, 63 S.E. 84, and cases there cited. These assignments cannot be sustained.
This group of assignments is likewise untenable for the further reason that it appears from the record that after the Court had refused to allow the defendant's challenge for cause of the last of the veniremen who said he had formed an opinion as to the defendant's guilt, and after the defendant had made his last challenge for cause, he still had remaining seven peremptory challenges. It is well settled that the defendant cannot object to the acceptance of a juror, so long as he has not exhausted his peremptory challenges before the panel is completed. State v. English, 164 N.C. 497, 498, 80 S.E. 72, and cases there cited.
The second group of assignments of error relate to the Court's refusal to sustain the defendant's objection to the special venire. The defendant in his brief treats this objection and motion based thereon as a challenge to the array.
"Challenges to the array are at once an exception to the whole panel, in which the jury are arrayed or set in order by the...
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... ... performed by men unexceptionable in respect of ... qualification.' ... ... Finally, the view is advanced that the exceptions should be ... overruled as harmless since the defendants failed to use all ... of their peremptory challenges. State v. Dixon, 215 ... N.C. 438, 2 S.E.2d 371; State v. Levy, 187 N.C. 581, ... 122 S.E. 386; State v. Upton, 170 N.C. 769, 87 S.E ... 328; State v. English, 164 N.C. 497, 80 S.E. 72; ... State v. Lipscomb, 134 N.C. 689, 47 S.E. 44; ... State v. Lambert, 93 N.C. 618. In reply, the ... ...
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