State v. Haywood
| Decision Date | 30 June 1875 |
| Citation | 73 N.C. 437 |
| Parties | STATE v. SIRREE HAYWOOD. |
| Court | North Carolina Supreme Court |
For an informality in drawing or empanneling grand jurors, a plea on the arraignment of the defendant for trial, and not a motion to quash, is the proper practice.
Section 229, Code of Civil Procedure, prescribing how the jury lists of the several counties shall be annually prepared by the County Commissioners, is directory only, and not mandatory. And the objection that the jury list, from which the grand jury was drawn, did not contain the names of all the persons in the county qualified to sit as jurors, was properly overruled in the Court below.
( State v. McEntire, 2 Car. L. Repos. 28; Seaborn's case, 4 Dev. 305, cited and approved.)
CRIMINAL ACTION, for betting at a public gaming table, tried at the Spring Term, 1875, of the Superior Court of WAKE county, before his Honor Judge Watts.
The defendant, upon hearing the indictment read, moved to quash the same, because it was not found and presented by a grand jury, duly and regularly selected, summoned, drawn and sworn according to law; whereupon the following facts alleged by the defendant, as the ground for quashing the said indictment, are admitted by the Solicitor.
1. The jury list, from which the jurors for the term at which said bill was found, were selected, did not contain the names of any persons qualified to act as jurors resident in three of the townships of said county, to-wit: Raleigh, Wake Forest and Swift Creek.
2. The County Commissioners made out the said jury list, at their session of September, 1874, on which were 450 names for 14 townships of Wake county; after the venire in this case was returned to Court, the said County Commissioners added to the jury list, 212 names of jurors, as the lawful jurors, in the said three omitted townships.
3. The completed and revised lists of the jurors for the whole county for the year 1873, in September of that year, had been prepared by the previous Board of County Commissioners, and was in the custody of the Board which selected said jurors.
His Honor, after argument, refused the motion to quash, and required the defendant to plead, which was done by his entering the plea of “not guilty.”
The jury returned a verdict of guilty. Judgment and appeal by defendant.
Fowle and Battle & Son, for defendant .
Attorney General Hargrove and Harris, for the State .
The regular way of raising the question here made, would have been, not by a motion to quash, but by plea on the arraignment for trial. Such is the course indicated as the most proper in the State v. McEntire, 2 Car. L. Rep., 28; and afterwards approved in the State v. Seaborn, 4 Dev., 305. But as the facts are stated and agreed upon, the question will be considered as if raised by plea and demurrer thereto.
The facts are, that the jury list, from which the grand jury finding the indictment was drawn, contained the names of 451 qualified jurors, but did not contain the names of 241 others, who were also qualified and ought regularly to have been on the list, but were omitted therefrom by the County Commissioners in preparing and revising the jury list,...
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