State v. Gardner

• Citation: 10 S.E. 146,104 N.C. 739
• Parties: STATE v. GARDNER.
• Decision Date: 28 October 1889
• Court: United States State Supreme Court of North Carolina

10 S.E. 146

104 N.C. 739

STATE v. GARDNER.

Supreme Court of North Carolina

October 28, 1889

This was an indictment for murder, tried at the September term 1889, of the superior court of Wayne county, before ARMFIELD Judge. The prisoner was arraigned on Tuesday of the first week of the court, and pleaded not guilty, whereupon the court set the case for trial on Friday of same week, ordered a special venire of 100, and had the names drawn from the jury-box in accordance with the provisions of Code, § 1739. When the case was called for trial, and before any juror had been drawn or sworn, the prisoner moved to quash the bill of indictment, for that James H. Egerton, a member of the grand jury, had a suit pending and at issue in the said superior court when the bill was found. His honor held that, conceding that the said juror was at the time a party to such suit, the motion was not made in apt time, but should have been made before the prisoner was arraigned and pleaded. The other material facts are embodied in the opinion. Verdict of guilty; judgment; appeal by prisoner.

Aycock & Daniels, for appellant.

The Attorney General and E. C. Smith, for the State.

AVERY J., (after stating the facts as above.)

The exception to the refusal of the court to allow the motion to quash is founded upon the construction placed by the prisoner's counsel upon section 1741 of the Code, which is as follows: "All exceptions to grand jurors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and, if not so taken, the same shall be deemed to have been waived." This section was first enacted as a part of the Code, and took effect, in November 1883. Prior to that time the old distinction that a motion to quash was proper when the defect complained of was apparent on the face of the record, while a plea in abatement was the appropriate proceeding to prove matters dehors the record had not been uniformly observed, but had been adverted to in a number of cases. Hence there were differences of opinion as to the proper method of raising the objection to the qualification of a grand juror, as will appear from an examination of the authorities cited and discussed by Chief Justice SMITH in State v. Haywood, 94 N.C. 847; State v. Haywood, 73 N.C. 437; State v Griffice, 74 N.C. 316; State v. Smith, 80 N.C. 410; State v. Baldwin, Id. 390; State v. Blackburn, Id. 474; State v. Watson, 86 N.C. 624; State v. Barbee, 93 N.C. 498. The departure from the old rule having in some instances received the sanction of the court, it seems to us that the intimation of the chief justice in State v. Haywood, 94 N.C. 847, that the section (1741) was enacted to settle the dispute by declaring definitely that a motion to quash would lie on objection to the qualification of a grand juror, foreshadowed the proper interpretation to be given it. The case last named was heard in this court at the term next succeeding the enactment of the Code; and doubtless the evil that the law was intended to remedy was this uncertainty and conflict of opinion; and it should be the object of the legislators of every good government to make the law so plain that every citizen may understand its provisions sufficiently well to know his rights, and discharge his legal duties to the state. Prior to the passage of the statute, it had been unmistakably settled that whether it was proper to file a plea in abatement, or make a motion to quash, it was in apt time to pursue either course when the defendant was arraigned, and before he entered his plea to the...