State v. Ephraim

• Decision Date: 31 December 1836
• Citation: 19 N.C. 162
• Court: North Carolina Supreme Court
• Parties: THE STATE v. EPHRAIM.

19 N.C. 162

THE STATE

v.EPHRAIM.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1836

1. A jury charged in a case of capital felony, cannot be discharged before rendering a verdict at the discretion of the court, without the prisoner's consent; nor can they, in such case, be discharged, but for evident, urgent, overruling necessity, arising from some matter occurring during the trial, which was beyond human foresight and control; and generally such necessity must be set forth in the record.

2. Everything which is stated in a record as a fact, is to be taken as such, because the law reposes entire confidence in the integrity of the court; but where the record only states the evidence, without any judgment of the court ascertaining the fact sought to be established by it, no other court can draw the inference of fact from such evidence, and act upon it as a fact.

The case of the State v. Spier, 12 N. C., 491, recognized and sustained as authority.

This was an application for the discharge of the prisoner, a slave from confinement in the jail of Craven county. In the last vacation, his Honor, Judge Gaston, was applied to for a writ of habeas corpus,which he issued, and, on account of the graveness of the question likely to arise, made returnable before the judges of the Supreme Court. The sheriff of Craven returned with the writ, as the cause of the prisoner's capture and detention, that the prisoner wascommitted to his custody by the Superior Court for his county, charged with the murder of Benjamin Venters, as by a transcript of the record of that court annexed to the return as a part of it, was set forth. By the transcript it appeared, that at the last term of Craven Superior Court, before his Honor Judge Donnell, an indictment was found against the prisoner for the murder of Benjamin Venters, upon which the prisoner was arraigned, pleaded not guilty,

and was thereupon put upon his trial by a jury: that on Sunday morning following the commencement of the term, the jury came into court, and declared that they had not agreed of their verdict, and that they were not likely to agree, however long they were kept together. Two of the jurors then stated that they were unwell; and being sworn, one of them deposed, that since he had been impannelled, he had taken a cold which had produced a violent sore throat, and he believed a longer confinement would seriously affect his health: and the other deposed, that since he had been impannelled, he had been attacked with rheumatism, to which he was subject by exposure, and considered a further exposure likely to be very injurious to his health: upon this the court proposed to discharge the jury, and asked the consent of the prisoner's master and counsel, which was refused: "whereupon" the record proceeded to state, "the court in the exercise of its discretion, believing this to be a case for the discharge of the jury, ordered a juror to be withdrawn, and the jury to be discharged; and the court hoping that on a proper case being presented, the Supreme Court would be disposed to review the doctrine laid down in the case of Spier, and believing that upon such review, it would be found that the principle of that case is neither supported by the weight of authority, or consistent with the enlightened spirit of the age—ordered the prisoner to be remanded to the jail of the said county, to await his trial at the next term of the court, before another jury.

RUFFIN, Chief Justice, having stated the case as above, proceeded: The right of the prisoner to his discharge on the one hand, and the propriety of putting him on his deliverance before a second jury on the other hand, have been fully discussed by counsel for the prisoner, and by the Attorney General for the state, before myself and both of my brethren: and I am delegated to pronounce our unanimous opinion, founded upon very deliberate consideration, that the prisoner cannot be tried again, but is entitled to his discharge, in the same manner as if he had been acquitted by the jury.

The correctness of this opinion depends principally, if not

entirely upon a proper understanding of the facts, and the inferences from them, which are stated in the record, as the grounds of the order for the discharge of the jury. We premise, therefore, that it seems clearly to us, that the judge of the Superior Court did not act upon the idea of the state of the health of the two jurors being such as to destroy or impair their capacity bodily or mental, for duly considering the prisoner's case, and coming to a verdict satisfactory to themselves; or of its being such as to render longer confinement on the jury, with the refreshments and attendants allowed by law under the sanction of the court, likely to endanger the lives of the jurors, or probably produce great or lasting injuries to their constitutions. Indeed the affidavits of the jurors fall far short of presenting such a case, and much less are they sufficient of themselves to establish it without any judgment of the court given in the record on the affidavits as evidence. His Honor refraining from pronouncing any such decision of his own upon the evidence, proceeds in his discretion, to discharge the jury: being of opinion that it was in law a matter of discretion, it is probable that he purposely withheld his judgment as to those facts; nay it is yet more probable, from the evidence set forth, that in his judgment, the jurors were not in fact incapable or unable to proceed in the trial, and for that reason he did not find those facts in the record.

Certain it is, that the facts are not stated as having been found by the court, but only the testimony of the jurors; and it is stated that the order was made in the exercise of the discretion of the court. Discretion is evidently usedin contrast and contradistinction to necessity; and the evidence was inserted in the record, not for the purpose of giving legal validity to the order, but for the purpose of preserving a memorial of the ground of it, and to show that it was a discreet and not an arbitrary order. Even if the power to discharge a jury be discretionary in the court, it ought certainly to be exercised with great caution, and only under urgent circumstances, denoting at the least, great inconvenience in proceeding in the trial; and a judge honestly assuming a responsibility, naturally desires that the evidence of the reasons for his act, whether adequate or inadequate, should be as permanent as the evidence of the act itself. Our

conclusion, therefore, from so much of the record as speaks of what was done in the Superior Court, or by that court touching the discharge of the jury, is, that the judge ordered the discharge, and intended to say that he ordered it, not upon any necessity, but as being a thing within his discretion; and because this was a proper case for the exercise of this discretion upon his official responsibility. No doubt it was thus expressed in the record, that the question might be distinctly presented, whether this be a discretionary power of the judge presiding at a trial or not; and for the purpose of saving to the prisoner the benefit of the law, if his Honor should be mistaken as to the nature of the power. Our conclusion is further confirmed by the language of the judge in assigning his reasons for remanding the prisoner. He refers to Spier's case, and states his wish to have the doctrine laid down in it reviewed; and in his hope that it will be reversed, it is manifest from the dissimilarity of the two cases, that the allusion was not to the point decided in The matter of Spier, 12 N. C., 491, but to the doctrine discussed by the judges, and the general reasons which led to the particular decision. In that case, the jury was not discharged by the court, but the term of the court expired, so that the jury could not give a verdict. In the present case the court discharged the jury, and without any such cause, which cannot indeed exist, since the act of 1830. Our understanding therefore is, that the record presents and was intended to present, but the single question before mentioned—whether a jury charged in acase of capital felony, can be discharged before rendering a verdict at the discretion of the court, and the prisoner again put on his trial before another jury ? We think that there is no such discretion; and that the jury cannot be discharged without the prisoner's consent, 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.

For this principle, and for almost the words in which we lay it down, we are indebted to Spier's case. The whole scope of the reasoning of the judges, who delivered their opinions upon that occasion, is decidedly and warmly against such a discretion, as being contrary to the common law, and so

dangerous to the liberty and security of the citizen, that the doctrine ought not to receive the least countenance in the courts of this country. Certain exceptions, founded upon necessity, and already established by judicial decisions, are recognized in that case, and a willingness is professed to admit others founded upon a reason alike forcible and conclusive. But Chief Justice Taylor, says, "that all the exceptions ought to be confined to those cases of extreme and positive necessity which are dispensed by the visitation of God, and which cannot, by any contrivance of man, be made the engines of obstructing that justice, which the safety of all requires should be done to the state, or weakening the efficacy of, or rendering illusive that maxim of civil liberty, of which the prisoner claims the benefit." In applying the doctrine thus expressed, the court there refused to incorporate into the law, as an exception to the ancient rule, the case of the term expiring before the trial was had, and as far as appeared, could have been...