State v. Ellington
| Decision Date | 31 December 1846 |
| Citation | 29 N.C. 61,7 Ired. 61 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. THOMAS G. ELLINGTON. |
OPINION TEXT STARTS HERE
In forming a jury in the trial of an indictment for murder, the prisoner challenged a person, tendered as a juror, because he was not indifferent for him. To sustain the challenge before the Court, the prisoner offered that person as a witness, and being sworn he stated “that he had formed and expressed an opinion adverse to the prisoner, upon rumors which he had heard; but that he had not heard a full statement of the case, and that his mind was not so made up as to prevent the doing of impartial justice to the prisoner.” Held that, upon this evidence, the Court might find that the juror was indifferent, and having so found as a matter of fact, the Supreme Court cannot revise their decision.
Appeal from the Superior Court of Law of Rockingham County, at the Fall Term, 1846, his Honor Judge BATTLE, presiding.
The prisoner was indicted for murder, and when forming the jury, he challenged a person, tendered as a juror, because he was not indifferent for him. To sustain the challenge before the Court, the prisoner offered that person as a witness; and, being sworn, he stated, “that he had formed and expressed an opinion, adverse to the prisoner, upon rumors which he had heard; but that he had not heard a full statement of the case, and that his mind was not so made up as to prevent the doing impartial justice to the prisoner.” The Court “decided that the said J. W. is indifferent;” and thereupon the challenge was over-ruled, and then the prisoner challenged the juror peremptorily.
Upon the trial, the mother and a sister of the prisoner were witnesses for him; and their credibility was attacked on the part of the State. In the argument before the jury, the counsel for the State urged their relation to the prisoner as one reason, amongst others, which affected it. And in charging the jury, the presiding Judge, in reference to the point, informed them, “that it was their province to determine on it, and that it was for them to say, whether those witnesses had testified truly, notwithstandiug their relation to the prisoner, or had yielded to that human infirmity to which we are liable, and had testified falsely in favor of their son and brother.”
After conviction, the prisoner moved for a venire de novo, upon the grounds: first, that his challenge for cause was not allowed; and, secondly, that the Judge had expressed an opinion upon the facts, contrary to the Act of 1796. But the Court refused the motion, and passed sentence of death on the prisoner, and he appealed.
Attorney General, for the State .
No counsel for the defendant.
The discussion in Benton's case, 2 Dev. and Bat. 196, of the point respecting the juror, left little to be said on the rule in our law on that subject; and it is only necessary to compare the present case with that, to see that this judgment cannot be reversed on the first ground. The conclusions, there arrived at, are, that an opinion fully made up and expressed is a good cause of principal challenge, as a matter of law; but that one imperfectly formed, or one merely hypothetical, that is, formed on the supposition that facts are as they have been represented, does not constitute cause of such a challenge, but “of challenge to the favour, which is to be allowed or disallowed, as the triers shall find the fact of favour or indifferency.” When the record sets out simply the matter, alleged as the cause of challenge, and a disallowance of the challenge, the truth of the matter so alleged is understood to be admitted, and the decision is assumed to be of the matter of law, substantially as on demurrer. That, of course, can be reviewed. But, when upon evidence the fact of favour or indifferency is found, whether by triers, or by the Court in their stead, the finding cannot be reviewed, but is conclusive. Those are the general doctrines of that case. The particular circumstances of it were, that a juror was challenged by the prisoner, because he had formed and expressed an opinion, though he said further, that his opinion was not so fixed as to influence him in making up a verdict, but that he could pass impartially on the case after hearing the evidence; and thereupon the record stated merely, that the Court over-ruled the challenge and put the prisoner to his peremptory challenge. Upon that record the Court held, that if it had appeared, that the opinion, which the juror had formed, was adverse to the prisoner, it would have been a good ground of principal challenge, notwithstanding the subsequent qualifications with which the juror described his opinion. But that was owing to the state in which the record placed the case. It did not appear from what source the juror drew his opinion--whether from personal knowledge, or from his presence at an examination of witnesses respecting it, or from the relation of one who was present at it, or from newspapers or other medium of common fame....
To continue reading
Request your trial
-
State v. Bohanon
... ... decide fairly and impartially as between the state and the ... defendant, and the court found upon the evidence that he was ... indifferent. The findings of fact as to indifference have ... been held not to be reviewable in this court. State v ... Ellington, 29 N.C. 61; State v. Collins, 70 ... N.C. 241, 16 Am. Rep. 771; State v. Kilgore, 93 N.C ... 533; State v. Potts, 100 N.C. 457, 6 S.E. 657; ... State v. De Graff, 113 N.C. 688, 18 S.E. 507; ... State v. Fuller, 114 N.C. 885, 19 S.E. 797; ... State v. Kinsauls, 126 N.C. 1096, 36 S.E. 31; ... ...
-
The Anarchists Case Ex parte Spies and others
...Com. v. Webster, 5 Cush. 295; Holt v. People, 13 Mich. 224; State v. Fox, 25 N J. Law, 566; Osiander v. Com., 3 Leigh, 780; State v. Ellington, 7 Ired. 61; Smith v. Eames, 3 Scam. 81. See, also, an elaborate note to this last case Page 170 36 Amer. Dec. 521, where a very large number of aut......
-
State v. Eakins
...of their interest in the verdict. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839; State v. Britt, 263 N.C. 535, 139 S.E.2d 735; State v. Ellington, 29 N.C. 61. However, this approval is qualified by the requirement that the jury must also be instructed to the effect that if, after such scruti......
-
Butler v. Greensboro Fire Ins. Co.
...hypothetical opinion, or one based only on rumor or report, is not cause for principal challenge but for challenge to the favor. State v. Ellington, 29 N.C. 61; State Dove, 32 N.C. 469; State v. Bone, 52 N.C. 121; State v. Collins, 70 N.C. 241, 16 Am. Rep. 771; State v. Kilgore, 93 N.C. 533......