State v. Jones

Decision Date28 March 1887
Citation1 S.E. 680,97 N.C. 469
PartiesSTATE v. JONES and others.
CourtNorth Carolina Supreme Court

Appeal from criminal court, New Hanover.

The Attorney General, for the State.

No counsel for defendants.

MERRIMON J.

The cause of challenge to the array is wholly without merit. The statute (Acts 1885, c. 63, § 19) prescribing how a special venire ordered by the judge of the criminal court in capital cases shall be drawn and summoned is substantially and in effect the same as the general statute (Code, § 1739) on the same subject. The prisoner is not deprived of any right or cause of challenge that any other person charged with the like felony in the superior court of any county in the state would have under similar circumstances. The objection seems to rest upon the unfounded supposition that the prisoner has the fundamental right to select the jury to try him. He has no such right; he has only the right to have a fair and impartial jury; and, when it is selected without objection the prisoner having the right to make additional peremptory challenges, it must be presumed conclusively that such a jury has been obtained. His failure to object when he could, is an implied admission on his part that the jury is a fair and unexceptionable one, though perhaps, not the one he would have preferred. The right of challenge is not allowed to enable the prisoner to select jurors who will probably be disposed to acquit, or afford him undue advantage, but to select just and impartial ones. It would be a reproach upon the administration of criminal justice to afford opportunity, in the course of procedure, to select jurors, on the one hand, who would more likely convict, or, on the other, would most likely aquit the prisoner. The law does not allow or tolerate, but, on the contrary, forbids and frowns upon, any procedure or practice that leads to such results. Hence it has been repeatedly held, where the jury was obtained before the prisoner had exhausted his right of peremptory challenge, that it was unnecessary for this court to decide whether or not the court below had improperly allowed or disallowed challenges for cause, or had allowed the state to stand aside temporarily too great a number of jurors. As the prisoner ceases to object while he has the right to make additional peremptory challenges, it must be taken that he accepts the jury as fair and impartial, and this is such a one as the law contemplates and desires. And so in this case, as the jury was obtained before the prisoner had exhausted his right of peremptory challenge, it is unnecessary to decide the questions that arose in the course of the selection of the jury other than the challenge to the array. State v. Gooch, 94 N.C 987; State v. Hensley, Id. 1021, and the cases there cited.

The general objection that the statute first above cited is unconstitutional, and therefore void, is without foundation. It creates and defines the jurisdiction of criminal courts for the counties of New Hanover and Mecklenburg. Power is expressly conferred upon the legislature to establish such and like courts, with such jurisdiction as may be prescribed, not inconsistent with the constitution. We are wholly unable to see how this statute in any way, respect, or degree destroys, abridges, or impairs any constitutional right of the citizens of the counties named, or of any county, unless possibly in so far as it provides that an indictment concurred in by nine grand jurors shall be sufficient. It was suggested in State v. McNeill, 93 N.C. 553, that this provision might be questionable, but, if it were void, this would not render the whole statute void. An indictment concurred in by 12 grand jurors would be good, as was decided in that case.

The mere fact that the number of jurors required to be drawn and...

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