Appeal
from superior court, Cumberland county; Bryan, Judge.
E. J
Fuller was convicted of murder, and appeals. Reversed.
Indictment
for murder, tried before Bryan, J. The exception to the
ruling of the court permitting the state to challenge a juror
who had been tendered to the prisoner appears in the opinion.
The
prisoner presented affidavits charging improper conduct on
the part of the jury and of the officer who had them in
charge, and showing, or tending to show, bias on the part of
J. C. Tew, one of the jurors, and from said affidavits the
court found the following facts:
"That
eleven of the jurors were shaved by one of their number in
their room on Saturday evening, the third day of the trial
and the other (a colored man) was carried to a barber shop
in town, about 200 yards from the room in which the
remaining 11 jurors were. The officer, locking the door of
said room, put key in his pocket, and accompanied colored
juror to the barber shop and back, and when he returned
found everything as he left it. They were supplied with two
quarts of whisky on Saturday afternoon. One quart was
bought for Sunday, the jurors themselves furnishing the
money, and the officer buying it for them. Every juror
drank out of it. Each juror took one drink, consuming one
quart. One quart was first bought, and some time after
same afternoon, the other quart. The jurors played cards
from time to time pending the trial, the cards being
furnished by the proprietor of the boarding house. The
friends of the deceased had been boarding at the house to
which the jury were carried, but they did not remain there
after the jury were carried there. That on another occasion
the officer took one of the jurors, who was troubled with
his bowels, to a back lot, to obey a call of nature, and at
the request of the juror, who was complaining of pain,
carried him into a saloon, where the juror and the officer
each took it with him,--the remaining eleven being left in
the room, and the same locked up. That on another occasion
one of the jurors requested the officer to take him to a
livery stable, not far off, in order to remove his horse to
another stable, and the officer did so, and also allowed
the colored juror to go with them, leaving the
other 10 jurors locked up in the room until they returned.
That the officer allowed the jurors to use and read the
Wilmington Messenger from day to day during the trial,
which contained what purported to be a full report of the
evidence and abstract of the argument of counsel,
instructing them not to read the account of the Fuller
trial. That on the night before the verdict was rendered
the jury, without the knowledge or consent of the prisoner
or court, was taken by the officer to a prayer meeting in
the Baptist Church. That they sat together, the officer
sitting with them, and all in his immediate view; and that
there was nothing improper in their conduct while at
church, going to or from. The above facts are found by the
court upon the affidavits filed by the prisoner and the
affidavit of E. M. Waddell, the officer of the jury, which
he filed in answer to the rule served upon him for
contempt, in violation of his duty as such officer, and
which he asked might be read in response to the affidavits
as to his conduct. It was agreed between counsel on both
sides that the officer might take the jury to church on
Sunday, which he did. This is the only agreement made by
counsel as to the jury.
"[Signed]
Henry R. Bryan, Judge Presiding.
"The
officer, answering a rule, was fined by the court one
hundred and fifty dollars, and sentenced to jail for thirty
days. Upon the sworn testimony of his physician that
imprisonment would imperil his life, he being an old and
feeble man, and further testimony of his not having over
fifty dollars in property, the fine was stricken out and
the judgment suspended.
"[Signed]
Henry R. Bryan, Judge, etc."
Facts
found by the judge, and his rulings entered of record:
"One
of the jurors (J. C. Tew), having been asked the question
whether he had formed and expressed the opinion that the
prisoner at the bar was guilty, answered in the negative, and
was thereupon accepted. The prisoner, after the verdict,
offered the affidavits of S. C. Godwin and J. R. West,
tending to show that the juror had expressed an opinion,
which affidavits were as follows:
"'S.
C. Godwin, being duly sworn, says: That on Monday, January
22, 1894, late in the afternoon, affiant had a conversation
with J. C. Tew and J. R. West relative to the trial of
Fuller case, in which conversation affiant asked said Tew
(who was one of the jurors who tried the case) and West,
"What are they doing in the Fuller case?" to
which West said, "They are doing nothing."
Affiant then asked them if they were summoned on the
venire, or if the venire was summoned, to which West
replied, "No, and they had better not summon us unless
they want him [Fuller] hung; had they, John Curt?"
[addressing Tew]. J. C. Tew then said, "You bet
not."'
"'J.
R. West, being duly sworn, says that on Monday of the first
week of this term of the court he was at the house of his
uncle, S. C. Godwin, in Flea Hill township, Cumberland
county, in company with the said J. C. Tew, one of the
jurors in the above-entitled case; that the subject of
conversation was the Fuller trial. S. C. Godwin asked if
they had summoned the venire. This affiant said, "No,
they had done nothing with him yet, and they need not
summon me and Tew, because we would hang him; would not we,
Tew?" Whereupon the said Tew said. "You bet we
would," or words to that effect.'
"Upon
which foregoing affidavits prisoner asked the court to find
that the juror Tew was not an indifferent juror at the time
he was accepted by the defendant. The court declined so to
find, being of the opinion that the affidavits were not
sufficiently strong.
"[Signed]
H. R. Bryan, Judge, etc."
The
single exception to the charge which is discussed in the
opinion is set forth therein in full. From the judgment
pronounced upon a verdict of guilty the prisoner appealed.
AVERY
J.
After
all of his peremptory challenges had been exhausted, the
juror Hawley was passed by the state, and tendered to and
accepted by the prisoner. As the clerk was about to swear
him, he asked to be excused upon the ground that he was an
intimate and lifelong friend to the prisoner, and connected
with him by marriage. Further investigation developed the
fact that no relationship, either by consanguinity or
affinity, existed between the prisoner and the juror, but
that a first cousin of the prisoner had married the
juror's second cousin. After correctly ruling that no
sufficient cause of challenge had been shown, and after it
had been made to appear that the juror had previously asked
the counsel for the prosecution to excuse him, but without
assigning any reason for making the request, the court
overruled the objection of the prisoner, and permitted the
state to challenge the juror peremptorily. The statute
(Code,§ 1200) provides that "in all capital cases the
prosecuting officer on behalf of the state shall have the
right of challenging peremptorily four jurors; provided said
challenge is made before the juror is tendered to the
prisoner, and if he will challenge more than four jurors he
shall assign for his challenge a cause certain." The
right of peremptory challenge is given to the prosecuting
officer, coupled with the express condition that it is to be
exercised before the particular juror is tendered to the
prisoner or not at all. The statute imposes no such
restriction as to challenges for cause. State v
Vestal, 82 N.C. 563. Hence, where a juror is tendered to
a prisoner, and on void dire states that he
had formed and expressed the opinion that the prisoner is not
guilty (State v. Jones, 80 N.C. 415), or where,
even, after he is both tendered and accepted, he then, on
coming to the book to be sworn, states that he is related to
the prisoner within the ninth degree (State v. Boon,
Id. 461), in either case the court unquestionably
has the power to allow the challenge for cause. For the same
reason, where the fact of killing was admitted, and a
prisoner charged with murder relied upon insanity as a
defense, the court had the power to permit the state to
challenge a juror who, after being accepted, stated that he
was firmly fixed in the opinion that the prisoner was insane
at the time of the killing, and that this belief could not be
removed by hearing any amount of evidence. State v.
Vann, 82 N.C. 631. Where a prisoner charged with
homicide has accepted a juror, and, before the jury is
impaneled, the nisi prius judge, acting as a trior,
ascertains that the juror has formed and expressed the
opinion that the prisoner is not guilty, it is within his
sound discretion to allow or disallow a challenge for such
cause, and his ruling is not reviewable, as it is not in any
such case of challenge to the favor. State v. Green,
95 N.C. 611. Had the juror Hawley stated that he was related
to the prisoner within the ninth degree, sufficient cause of
challenge would have been shown (State v. Perry,
Busb. 330, and State v. Potts, 100 N.C. 457, 6
S.E. 657), and the exception to the ruling of the court would
have been groundless. But the statute defines in plain and
unequivocal terms the limit to the right of objection on the
part of the state without assigning cause, and fixes
unmistakably the extent of time within which it is to be
exercised. None of the authorities cited for the prosecution
extend the right of peremptory challenge...
