State v. Haywood

• Decision Date: 28 February 1886
• Court: North Carolina Supreme Court
• Parties: STATE v. DUNCAN C. HAYWOOD.

94 N.C. 847

STATE

v.DUNCAN C. HAYWOOD.

Supreme Court of North Carolina.

February Term, 1886.

INDICTMENT for forgery, tried betore Clark, Judge, and a jury, at September Criminal Term, 1885, of the Superior Court of WAKE county.

The indictment on which the defendant was tried and convicted, consists of one count, charging forgery, contained in a bill passed on by the grand jury, at June Term, 1884, of Wake Superior Court, and of two others, the first charging forgery, and the second the uttering of a forged order, passed on at July Term, 1885. These bills were consolidated by order of the Court, as authorized by the rulings in State v. Johnson, 5 Ired., 221, and State v. Watts, 82 N. C., 656.

The trial came on at September Term, following, when the defendant being arraigned, and called on to answer the charge, the counsel appearing on his behalf, suggested to the Court his present insanity and inability to plead or make defence, and asked that a preliminary inquiry as to his mental condition be made before a jury. At a subsequent day during the Term, an issue was prepared and submitted to a jury, in this form: “Is the defendant, Duncan C. Haywood, sane, and capable of conducting his defence in the indictment?” The jury returned a verdict in the negative, and thereupon the defendant was ordered to be removed, and was conveyed, to the asylum for the insane near Raleigh, and committed to the custody and control of the authorities thereof. On the next day, and on motion of the Solicitor for the State, the verdict was set aside, as being against the weight of the evidence--the order of commitment to the asylum recalled--and the defendant brought back. The cause was then continued to the next term “ without prejudice,” and a day certain fixed for the trial, the Judge giving notice to counsel, that the two issues, as to the defendant's mental capacity to manage his defence, and of his guilt, would be submitted to one and the same jury at the same time.

At the designated day of the next Term, the cause was again called, and the same counsel acting for the defendant, asked for an order for its removal to another county, upon an affidavit offered in its support, to which the Solicitor opposed a counter affidavit, upon the hearing of which, the Court found as a fact, that “the ends of justice did not require, and would not be promoted, by the removal,” and denied the application. To this ruling counsel excepted. A motion was then made for a continuance, which was also refused, and exception entered.

Counsel then moved that the bill found at July Term, 1885, be quashed, on the alleged ground that a juror of the grand jury which passed upon it, was disqualified from acting as such, by reason of his not having paid his taxes for the preceding year--no affidavit accompanying the motion to sustain it. The Court ruled that the motion came too late, inasmuch as the defendant had been called on to answer the indictment at July Term, preceding--the preliminary issue of his present legal capacity tried--a verdict rendered and set aside-- cause continued--and motions for removal and continuance made and refused at this Term. Counsel also excepted to this ruling.

The Court thereupon directed the trial to proceed, and the clerk to propound the usual inquiry to the defendant, who, in proper person, pleaded not guilty of the charge, and the jury were empanelled to try the two issues:

“Is the defendant guilty or not guilty?

Is he now insane?”

Passing by the many rulings to which exceptions were taken during the progress of the trial, as not necessary to be considered in determining the appeal, it is sufficient to add that both issues were found against the defendant, and the sentence of the Court having been pronounced, the defendant appealed.

Attorney General, for the State .

Messrs. Jos. B. Batchelor, T. C. Fuller and John Devereux, Jr., for the defendant .

SMITH, C. J. (after stating the facts).

The authorities in this State fully settle these two propositions of law:

1. The non-payment of taxes for the year preceding the first Monday in September, when the list is made of competent jurors, constitutes a disqualification to act. The Code, §§1722 and 1723; State v. Griffin, 74 N. C., 316; State v. Watson, 86 N. C., 624.

2. The objection to a grand juror who acted in passing upon the indictment, based on such incapacity, taken in apt time and in a proper manner, is fatal to the prosecution.

The regular and appropriate method of making the objection under the general practice, when the fact upon which it depends does not appear in the record, but is outside, and to be established by proof, is by plea in abatement, and if it does so appear, by a motion to quash.

In our practice, the distinction has not been recognized as important, and the motion to quash has deen held proper in either case. It has the sanction of the Court, in State v. Liles, 77 N. C., 496, where a grand juror was disqualified by reason of his having a suit pending and at issue in the same Court, and for this personal defect, the indictment, on motion, was quashed. State v. Haywood, 73 N. C., 437; State v. Griffin, 74 N. C., 316; State v. Barbee, 93 N. C., 498.

And a plea in abatement for the same incapacity in one of the grand jurors, was sustained in State v. Smith, 80 N. C., 410, and it was held not necessary to show that he participated in the action of the body in finding the bill.

The objection, to be available, must be made in apt time, and if not made in apt time, is deemed to have been waived, and cannot be taken at a later stage in the progress of the cause. In the present case, it was interposed upon the arraignment, and before pleading to the charge, which the Court held, for the reasons stated in the ruling, too late to be entertained, and disallowed the motion. In this we think there is error.

The regular way of raising the question of the competency of the grand jury, in the words of BYNUM, J., “is not by a motion to quash, but by plea on the arraignment for trial.” State v. Haywood, 73 N. C., 437.

“The defendant is at liberty,” says DILLARD, J., “to avail himself of any want of qualification in the grand jury, in whole or part, when called on to plead.” State v. Smith, 80 N. C., 410.

“If there be a defect in the accusing body,” is the language of the same learned Judge in another case, decided at the same Term, “it is the right of the party indicted, by plea in abatement, or by motion to quash, to avail himself of such defect; but it is required to be exercised at the earliest opportunity after bill found, which must be upon the arraignment, when the party is just called upon to answer.” State v. Baldwin, Ibid., 390.

The prisoner moved to quash the indictment, after he had pleaded not guilty, for an alleged defect in the organization of the grand jury, and it was declared by the Court, ASHE, J., delivering the opiniong, that “the objection came too late. It was not taken in apt time.” State v. Blackburn, Ibid., 474.

“The non-payment of taxes, is held to disqualify a grand juror, and a defendant may avail...