State v. Ledbetter, 6929SC154

• Decision Date: 30 April 1969
• Docket Number: No. 6929SC154,6929SC154
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Carolyn LEDBETTER.

Page 68

167 S.E.2d 68

4 N.C.App. 303

STATE of North Carolina v. Carolyn LEDBETTER.

No. 6929SC154.

Court of Appeals of North Carolina.

April 30, 1969.

Certiorari Denied June 18, 1969.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Bernard A. Harrell for the State.

Arthur J. Redden, Hendersonville, for defendant appellant.

CAMPBELL, Judge.

The first contention of the defendant is that Judge Collier erred in refusing to rule on her plea of former jeopardy entered at the commencement of her trial. The record shows that, during the week of 9 December 1968, Judge Bryson presided over a special criminal session of the Henderson County Superior Court; this case was called for trial; the defendant and her husband entered pleas of not guilty; a jury was selected and impaneled before the noon recess; immediately after the noon recess, Judge Bryson withdrew a juror and ordered a mistrial with the consent of all parties. In the order declaring the mistrial, Judge Bryson found as a fact that a juror had been taken to a hospital in serious condition as the result of a sudden illness. The record further shows that, during the week of 16 December 1968, Judge Collier presided over this special criminal session; this case was again called for trial; the defendant and her husband entered pleas of former jeopardy and not guilty, whereupon Judge Collier, the solicitor, and the attorneys for the defendant and her husband retired to the judge's chambers for a discussion; they subsequently returned to the courtroom and the solicitor on behalf of the State proceeded to select the jury. The defendant took an exception because her plea of former jeopardy was not formally and specifically denied.

The defendant now claims that the trial court was requested to rule on this plea; the request was refused; and she was denied the right to be heard on this matter. The record, however, does not reveal any such request, refusal or denial. It is manifest, however, that the plea was denied as a matter of law since the court proceeded with the trial. The failure to make a formal and specific ruling under the circumstances of this case was not prejudicial error. See State v. Garnett, N.C.App., 167 S.E.2d 63, for a discussion by Mallard, C.J., of a similar problem involving a trial judge's failure to specifically rule upon a motion of a defendant for judgment as of nonsuit.

A plea of former jeopardy is properly denied when a mistrial is declared as the result of a juror's sudden illness. In State v. Battle, 267 N.C. 513, 148 S.E.2d 599, the defendants were charged with conspiracy to break and enter, with a felonious breaking and entering, and with possession of burglary tools. The defendants were arraigned and pleas of not guilty were entered. After a jury was selected and after the State began introducing evidence, a defense attorney became suddenly ill. The trial judge thereupon ordered a mistrial over the defendant's objection and continued the case. On the second trial a plea of former jeopardy was entered. The Supreme Court stated:

'Decision on the plea of former jeopardy depends upon the validity of the mistrial order. Unless that order can be upheld, jeopardy attached, and the plea would be good. If the order is valid, the plea is not good.

For obvious reasons the rule against a mistrial finds its maximum rigidity in capital cases. A more flexible rule applies in cases of less gravity. 'The ordering of a mistrial in a case less than capital is a matter in the discretion of the judge, and the judge need not find facts constituting the reason for such order.' * * * 'We conclude that the trial judge in cases less than capital may, in the exercise of sound discretion, order a mistrial before verdict, without the consent of defendant, for physical necessity such as the incapacitating illness of judge, juror or material witness * * *. His order is not reviewable except for gross abuse of discretion, and the burden is upon defendant to show such abuse.' * * * The incapacitating illness of the only counsel for one defendant, which developed after the trial began, is within the rule. The order withdrawing a juror, declaring a mistrial, and continuing the case to the next session of the court was valid. Hence the plea of former jeopardy was properly denied.'

To like effect, see State v. Pfeifer, 266 N.C. 790, 147 S.E.2d 190, where a juror became suddenly ill.

There was no abuse of discretion in the instant case. The evidence was sufficient to support the denial of the plea of former jeopardy as a matter of law. In addition, the defendant consented to the order of mistrial. In State v. Crocker, 239 N.C. 446, 80 S.E.2d 243, the following was stated:

'It is well established that the plea of former jeopardy cannot prevail on account of an order of mistrial when such order is entered upon motion or with the consent of the defendant.'

The first contention of the defendant is without merit.

The second contention of the defendant is that the trial judge erred in refusing to grant her motions for a special venire. It is argued that, if she was to get a fair and impartial trial, a special venire should have been called or the action removed to another county. In support of this argument, it is pointed out that twenty-two of the forty-nine prospective jurors were excused for cause since, in their opinions, they were prejudiced against the defendant and her husband, or each of them and since, in their opinions, they could not give the defendant and her husband, or either of them, a fair and impartial trial.

It is a matter of discretion with the trial judge whether to call a special venire or to remove the action to another county. G.S. § 9--11(b) provides, Inter alia, that '(t)he presiding judge may, in his discretion, * * * direct * * * a special venire be selected. * * *' G.S. § 9--12(a) provides, Nter alia, that 'any judge of the superior court, (on the motion of the defendant) if he is of the opinion that it is necessary in order to provide a fair trial * * * may order as many jurors as he deems necessary to be summoned from any county or counties * * *.' G.S. § 1--84 provides, Inter alia:

'In all * * * criminal actions in the superior and criminal courts, when it is suggested * * * that there are probable grounds to believe that a fair and impartial trial cannot be obtained in the county in which the action is pending, the judge may order a copy of the record of the action removed to some adjacent county for trial, if he is of the opinion that a fair trial cannot be had in said county * * *.'

In State v. Allen, 222 N.C. 145, 22 S.E.2d 233, the Supreme Court stated:

'A motion for change of venue or for a special venire, may be granted or denied in the discretion of the trial Judge, and his decision in the exercise of such discretion is not reviewable (in this Court) unless gross abuse (of discretion) is shown.'

In State v. Scales, 242 N.C. 400, 87 S.E.2d 916, the Supreme Court stated:

'A motion for a change of venue or for a special venire from another county, upon the ground that the minds of the residents in the county in which the crime was committed had been influenced against the defendant, is addressed to the sound discretion of the trial court.'

See State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. Conrad, 4 N.C.App. 50, 165 S.E.2d 771; State v. Porth, 269 N.C. 329, 153 S.E.2d 10.

The record in the instant case reveals no abuse of discretion by the trial judge in denying the motions for a special venire.

The second contention of the defendant is without merit.

The third contention of the defendant is that the trial judge erred in denying her motions for judgment as of nonsuit entered at the close of the State's evidence and renewed at the conclusion of all the evidence. It is argued that '(t)here is not one iota of evidence that the defendant placed a finger on the deceased child except to love and to care for the child.' There is in fact no direct evidence that the defendant is the guilty party. However, there is circumstantial evidence to the effect that she committed the crime in question. State v. Langlois, 258 N.C. 491, 128 S.E.2d 803, is a case factually similar to the instant case. The Supreme Court held that the evidence raised only a mere conjecture as to the existence of the defendant's guilt and that her guilt could not be based on mere probability as to past events. By 'past events' the Supreme Court was referring to the evidence that, prior to the time in question, she had been observed hitting the child with her fists and with the tongue of the child's wagon. However, these two cases are readily distinguishable.

In Langlois the deceased was a three-and-one-half-year-old boy who 'had been suffering from anemia most of his life' and who was described as being clumsy and as falling often. In the instant case, the deceased was a three-year-old boy described as physically normal for a child his age. In Langlois the death resulted from extensive peritonitis caused by the rupture of the small intestine, a condition which had existed for twenty-four to forty-eight hours prior to death. The evidence did not reveal whether the defendant had actual control and custody of the child during this period of time. The doctor who performed the autopsy testified that the "lacerations and bruises were traumatic in nature, that is, caused by blows to his body not self-inflicted." The lacerations and bruises numbered approximately 150, most of which were superficial. 'There were approximately a dozen or more lacerations which were through the skin which would have required suturing * * * had the child lived. The laceration on the abdomen of the child was approximately three eights to one half inch deep.' In the instant case Dr. LaTourette, who performed the autopsy, testified:

'It is my opinion these conditions had existed for at least four hours before death. * * *

* * * I have an opinion satisfactory to myself as to what caused...