State v. Guice, 546.

• Decision Date: 09 December 1931
• Docket Number: No. 546.,546.
• Citation: 201 N.C. 761,161 S.E. 533
• Parties: STATE . v. GUICE.
• Court: North Carolina Supreme Court

161 S.E. 533

(201 N.C. 761)

STATE .

v.GUICE.

No. 546.

Supreme Court of North Carolina.

Dec. 9, 1931.

Appeal from Superior Court, Henderson County; Sink, Judge.

George Guice was indicted for assault with intent to kill. From the order granting mistrial, defendant appeals.

Affirmed.

The bill of indictment and record is as follows:

"The Jurors for the State, upon their oath present that George Guice, in Henderson County, on the 1st day of September, 1916, did unlawfully, feloniously and wilfully assault, beat and wound one May English, a female person, with a deadly weapon, to-wit: a certain rock and knife, with intent then and there to kill and murder the said May English, the said Guice being a man over the age of 18 years, resulting in serious and permanent injury, loss of blood and permanent cuts and bruises, contrary to the statute in such cases made and provided, and against the peace and dignity of the State. J. Will Pless, Jr., Solicitor. A True Bill.

"John D. Osbome, Foreman of Grand Jury, Oct. Term, 1931.

"To the foregoing bill of indictment the defendant pleads not guilty. In the case at bar, after the State had introduced evidence and rested its case, the defendant, through hiscounsel, moved for judgment as of nonsuit, which motion was argued by counsel for defendant and by the Solicitor for the State.

"Before ruling on defendant's motion for judgment as of nonsuit, the Court, acting in its discretion and over the objection of defendant's counsel, and exception, withdraws a juror and orders a mistrial, to which the defendant's counsel again objected, and excepted.

"After the Court had ordered a mistrial the defendant, through his counsel, moved the Court for the discharge of the defendant and his bond. The motion was denied and defendant excepted."

To the above exceptions defendant duly assigned error and appealed to the Supreme Court.

R. L. Whitmire, of Hendersonville, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

CLARKSON, J.

The only question presented on this appeal: Did the court below, after the state had rested its case, over objection of defendant, who made a motion for judgment of nonsuit, C. S. § 4643, have the discretion to withdraw a juror and order a mistrial? We think so.

In misdemeanors, and all cases of felonies not capital, the court below has the discretion to order a mistrial and discharge a jury before verdict in furtherance of justice, and the court need not find facts constituting the necessity for such discharge,...