State v. Dry
| Decision Date | 04 May 1910 |
| Citation | 67 S.E. 1000,152 N.C. 813 |
| Parties | STATE v. DRY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cabarrus County; E. B. Jones, Judge.
Pink Dry and another were indicted for murder, and, from an order overruling a motion to discharge defendants, they appeal. Order affirmed, and cause remanded for trial.
Where in a joint prosecution for murder, a mistrial was ordered with the tacit assent of the accused because one of them temporarily absented himself from the courtroom while the jury was being chosen, the defendants were not entitled to be discharged on the ground that they had been in jeopardy; they having themselves asserted that the whole proceedings were invalid because of the absence of one of them.
Montgomery & Crowell and W. G. Means, for appellants.
The Attorney General and Geo. L. Jones, for the State.
The prisoners were on trial for murder. During the taking of the evidence, the judge learned for the first time that during the selection of the jury one of the prisoners (Blake) had left the courtroom and gone into an adjoining room, for a short while to speak with the coroner, without the knowledge of the court, solicitor, or his counsel, though the court had in fact given permission for said Blake to go into the adjoining room with the coroner, not knowing that he was one of the parties on trial. Upon learning the above facts, the court asked the counsel for the prisoners if they intended to except because the prisoner Blake had been absent a few minutes from the courtroom while the jury was being selected. Counsel replied that they did. The charge against the prisoners was for a joint capital felony, and there was no severance asked or ordered. The court stated that under these conditions he would withdraw a juror and order a mistrial. It does not appear that the prisoners objected. Certainly they took no exception. The order was accordingly made, the facts being found in full, and the clerk under the direction of the court copied the findings of fact and the order for a mistrial upon the minutes. The counsel for prisoners then moved for the discharge of the prisoners. The motion was overruled, and the prisoners excepted to the denial of the motion to discharge, and appealed. Refusal of the motion to discharge is not a final judgment, but an interlocutory order, and no appeal lies at this stage (State v Jefferson, 66 N.C. 311; State v. Wiseman, 68 N.C. 205; State v. Locke, 86 N.C. 649; State v Twiggs, 90 N.C. 686), where the authorities are reviewed (State v. Scruggs, 115 N.C. 806, 20 S.E. 720). But these same authorities and others hold that, upon application to this court upon a proper state of facts, certiorari will issue. State v. McGimsey, 80 N.C. 377, 30 Am. Rep. 90; State v. Bell, 81 N.C. 393. Whatever the reason for the distinction, the Attorney General very properly consents, in order to avoid delay and circumlocution, that the record on appeal may be treated as an application for, and a return to, an order for certiorari, and we will so treat it.
In every criminal prosecution, it is the right of the accused to be present throughout the trial. In misdemeanors this right can be waived by the defendant, with the consent of the court through his counsel. In felonies other than capital, the right to be present can be waived only by the party himself. State v. Jenkins, 84 N.C. 813, 37 Am. Rep. 643. "In capital trials, this right cannot be waived by the prisoner, but it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial." State v. Jenkins, supra; State v. Paylor, 89 N.C. 539; Wharton, Cr. Pl. and Pr. (9th Ed.) § 540 et seq.; 1 Bishop, New Cr. Proc. §§ 271 (2), 273. This last section cites numerous authorities. It is true that the prisoner is not required to be present during the argument of a motion for a new trial and similar motions. 1 Wharton, Cr. Pl. and Pr. (9th Ed.) § 548. That the privilege of being present can be waived except in capital felonies is held, reviewing the authorities, in State v. Mitchell, 119 N.C. 786, 25 S.E. 783, 1020, and State v. Pierce, 123 N.C. 748, 31 S.E. 847.
The earlier decisions in this state restricted the right of the court to order a mistrial in capital felonies to cases of "urgent and overruling necessity," and it was even held that the expiration of the term of court was not such a necessity. A statute was promptly passed to extend the term of court whenever a capital felony was being tried. Since then, the decisions have much broadened the meaning of the word "necessity," holding that in a capital case the judge may order a mistrial against the objection of the prisoner, when it appears that there has been an attempt to influence the jury even though the prisoner was not privy to it. State v. Wiseman, 68 N.C. 206. In State v. McGimsey, 80 N.C. 377, 30 Am. Rep. 90, it was held that a finding of fact by the court that the jury could not agree was sufficient "necessity" to justify the order for a mistrial, and that in mistrials the findings of fact by the judge are conclusive, and only his application of the law to the facts found are reviewable. Also, that where a mistrial in a capital case is made with the consent of the prisoner, he is not entitled to be discharged. State v. Davis, 80 N.C. 385.
It was also held that tampering with the jury or keeping back witnesses, or procuring the selection of a juror pledged to acquit the prisoner, are acts justifying a mistrial in a capital case (State v. Bell, 81 N.C. 594); and even though the prisoner was not cognizant of the intended fraud (State v. Washington, 89 N.C. 538, 45 Am. Rep. 700). A mistrial was held proper where a juror was found to be intoxicated. State v. Tyson, 138 N.C. 627, 50 S.E. 456. The court has often called attention to the fact that in the United States courts, and in most of the other states, a mistrial in a capital felony rests in the sound discretion of the trial judge, as...
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