State v. Ford

• Decision Date: 23 December 1914
• Docket Number: 577.
• Citation: 83 S.E. 831,168 N.C. 165
• Parties: STATE v. FORD.
• Court: North Carolina Supreme Court

83 S.E. 831

168 N.C. 165

STATE v. FORD.

No. 577.

Supreme Court of North Carolina

December 23, 1914

Appeal from Superior Court, Cherokee County; Justice, Judge.

J. W Ford was indicted for offenses and from an order striking out a directed verdict of not guilty and ordering a mistrial, he appeals. Appeal dismissed.

Walker J., dissenting.

Court held to have discretion to order mistrial, if a case not capital, to enable solicitor to procure new indictment to obviate variance.

W. M Axley and Witherspoon & Witherspoon, all of Murphy, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK C.J.

The defendant was indicted on three counts, for larceny of lumber, for embezzlement of money, and for obtaining money by false pretense, all from J. M. English. Prior to the trial the defendant moved the court to require the state to furnish a bill of particulars on the third count, charging false pretense. The state having failed to comply with this order, the court refused to allow the prisoner to be tried on that count. Pending the trial it was suggested by the defendant's counsel that there was a variance in that the bill laid the property in J. M. English, while the evidence showed that the ownership was in J. M. English & Co. The court intimated that the variance would be fatal, whereupon the solicitor asked the court to hold the defendant and allow him to send a new bill, which request was granted by the court, and the court ordered a verdict of not guilty, and charged the sheriff to hold the defendant under a $500 bond. But the solicitor requested the court to strike out the order for the verdict of not guilty which had been entered by the clerk, and the court then in the presence of the jury, who had not been discharged, and in the presence of the defendant and his counsel, and in its discretion, struck out the verdict of not guilty, and also in its discretion withdrew a juror and ordered a mistrial.

The appeal is premature. In State v. Webb, 155 N.C. 430, 70 S.E. 1065, the court said:

"The appeal of the defendant must be dismissed because, in this state, no appeal in ordinary form lies in a criminal prosecution, except from a judgment on conviction or on plea of guilt duly entered. Revisal 3274, 3275. It would lead to interminable delay and render the enforcement of the criminal law well-nigh impossible if an appeal were allowed from every interlocutory order made by a court or a judge in the course of a criminal prosecution, or from any order except one in its nature final. Accordingly, it has been uniformly held with us, as stated, that an ordinary statutory appeal will not be entertained except from a judgment on conviction or some judgment in its nature final."

To same purport, State v. Goings, 100 N.C. 504, 6 S.E. 88.

Formerly in this state the state was allowed to appeal from a verdict of not guilty in criminal cases. State v. McLelland, 1 N. C. 632; State v. Haddock, 3 N. C. 162. But for many years now, the statute has restricted appeals by the state to the cases named in Revisal 3276, except that appeals have been allowed the state from a verdict of not guilty in certain courts, as in State v. Bost, 125 N.C. 707, 34 S.E. 650; State v. Mallett, 125 N.C. 724, 34 S.E. 651. If the statute should again permit an appeal from a verdict of not guilty, of course then it might be allowable for the trial judge to set aside the verdict without the necessity of an appeal, but that is not contended for by the state in this case.

It is true that a verdict of not guilty can be set aside in case of fraud as in State v. Freeman, 66 N.C. 647, and State v. Swepson, 79 N.C. 632, but that also is by no means the proposition now before us.

In this case there has been no action whatever by the jury. The judge, upon a mistaken impression, possibly, as to the legal effect of the evidence as to a variance, directed a verdict to be entered. The jury took no action. The direction was that of the judge, just as would be his action in admitting or rejecting evidence, or in charging or refusing to charge the jury upon a proposition of law. In either of these cases he could, before the jury acted, withdraw or admit the evidence, or change his instruction. So here, the jury having taken no action, being entirely passive, and not having left the box, the judge, under the impression that he had erred as to his conclusion that there was a variance which entitled the defendant to an acquittal, struck out the order (which had been made to the clerk and not to the jury) to enter a verdict of not guilty. Having done this, the case was in exactly the same...