State v. Hall

• Decision Date: 30 March 1921
• Docket Number: 275.
• Citation: 106 S.E. 483,181 N.C. 527
• Parties: STATE v. HALL.
• Court: North Carolina Supreme Court

106 S.E. 483

181 N.C. 527

STATE v. HALL.

No. 275.

Supreme Court of North Carolina

March 30, 1921

Appeal from Superior Court, Cumberland County; Daniels, Judge.

George Hall was convicted of a secret assault, and he appeals and petitions for certiorari. No error, and petition denied.

A verdict cannot be impeached by the testimony of jurors especially where the only witness by whom this could be met is dead.

W. C Downing, McCormick & Clark, and Robinson & Robinson, all of Fayetteville, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The defendant was convicted of a secret assault, and from the judgment upon such conviction he appealed to this court, and assigns several errors.

First. That his contentions were not stated, though the state's were given in full. This exception is not supported by the record, which shows that the contentions of both sides were stated by his honor with fairness and impartiality. Besides the objection, or rather suggestion, came too late. We have often held that such an objection must be made in apt time so that the court may have opportunity to supply any omission. The proceedings of the court must be conducted in an orderly manner, and, of course, all objections should be made at the proper time, and especially an objection of the kind here made. The latest case on the subject is McMahan v. Spruce Co., 180 N.C. 636, 105 S.E. 439, where other authorities are cited. It is there held that an exception to the manner of stating contentions of the parties must be brought to the attention of the court by action taken promptly and for the obvious purpose of having the omission, if there is one, corrected by the presiding judge at the time. There was no proper request to correct this oversight, if there was any, in the respect indicated.

Second. The contention as to the absence of a motive for the assault was stated to the jury in such a way that they must have understood it. The state contended that there was a motive for committing the assault, and the defendant denied that there was any such motive, or any evidence of one, and the judge explained these contentions pro and con to the jury, stating both phases of it, and certainly allowed neither side any advantage in the statement. The jury could not well have misapprehended the court, and the defendant's rights were fully protected. He therefore suffered no harm.

Third. The power of the court to set aside a verdict for cause after the adjournment is discussed in State v. Alphin, 81 N.C. 566, State v. Bennett, 93 N.C. 503, and State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31. But we need not refer to this feature of the case any further, and will assume, for the sake of argument, that we have possession of the cause sufficiently to grant relief, if the appellant is entitled to any, and we think he is not. He seeks to set aside the verdict, because of misbehavior of the jury, and proposes to impeach their verdict by their own affidavits. This is not allowable, as we have repeatedly decided in former cases, and his honor, Judge Daniels, so held, and was, of course, right in so deciding. Justice Bynum said, in State v. Smallwood, 78 N.C. 560:

"Misconduct on the part of the jury to impeach their verdict must be shown by other testimony than their own. This has been long settled and for the most convincing reasons, which will readily suggest themselves to all minds at all familiar with the administration of justice through the medium of trial by jury"

--citing State v. McLeod, 8 N. C. 344, where Judge Henderson said:

"As to the misconduct of the jury, it has been long settled, and very properly, that evidence impeaching their verdict must not come from the jury, but must be shown by other testimony. We can therefore perceive no grounds for a new trial."

In State v. Best, 111 N.C. 638, 15 S.E. 930, much like this one, Justice MacRae stated the rule very strongly...