State v. Levy

• Decision Date: 16 April 1924
• Docket Number: 274.
• Parties: STATE v. LEVY.
• Court: North Carolina Supreme Court

122 S.E. 386

187 N.C. 581

STATE
v.
LEVY.

No. 274.

Supreme Court of North Carolina

April 16, 1924

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

Joel Levy was convicted of murder in the second degree, and he appeals. No error.

Challenges to the polls or objections to individual jurors must be made in apt time, or else they are deemed waived, and it is too late after the trial has been concluded.

In capital cases a challenge propter defectum or propter affectum should be made as the juror is brought to the book to be sworn and before he is sworn. [122 S.E. 387]

H. L. Brothers and Dye & Clark, all of Fayetteville, for appellant.

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

STACY, J.

The defendant was first tried at the March special term, 1923, before Judge Horton, but a mistrial was had at that term because of the inability of the jurors to agree on a verdict. It appeared in the progress of the trial that W. C. Callahan, a deputy sheriff of Cumberland county, was shot on the morning of February 24, 1923, and died about 4 o'clock that afternoon while in the Highsmith Hospital at Fayetteville. The deceased, about an hour before his death, fully conscious of impending dissolution, stated to his nurse, Miss Andrews, now Mrs. Wise, according to her testimony, that he knew Mr. Smith was the man who shot him. Upon the strength of this testimony, Judge Horton issued a bench warrant for John Smith, and, at the next term, the grand jury returned a true bill against Joel Levy and John Smith in which the two were charged jointly with the killing of W. C. Callahan. At the August term, 1923, Judge Sinclair presiding, the State's motion for a separate trial of the two defendants was denied; whereupon the case was continued. At the November term, 1923, the state took a "nol. pros. with leave" as to the defendant John Smith and used him on the trial as a witness against the defendant Joel Levy.

According to Smith's testimony, he and another white man by the name of Toler [122 S.E. 388] brought 11 gallons of liquor in an automobile and put it out in the edge of a patch of woods not far from the defendant's house. After putting the liquor out, Toler drove off with his car while Smith went to notify Levy, a colored man, that the liquor was there. When Smith and Levy came back to the edge of the woods they found that the liquor had been moved, and they saw tracks leading across the sandy road from the place where it had been left. Levy insisted on following these tracks to find out what had become of the liquor. They had not gone far when they saw some one with it. Levy snatched a pistol from his pocket and fired two shots in rapid succession at the person with the liquor. This man was W. C. Callahan. Both shots took effect. Smith ran, and he and Toler came back to Fayetteville in Toler's car that afternoon. This evidence was denied in toto by the defendant, who set up an alibi and contended that he was not even present at the time of the shooting and knew nothing of it.

The testimony upon which the defendant was convicted, though positive and direct, may not be as convincing to us as it was to the jury. However, our inquiry is not directed to the weight of the evidence, but to its sufficiency to warrant a verdict. The jury alone may consider its credibility. Appreciating this fact, the defendant lodged no motion for dismissal of the action or for judgment as of nonsuit under C. S. § 4643, after the state had produced its evidence and rested its case, and quite properly so.

On the trial, the defendant noted several exceptions relating to the selection and impaneling of the jury, but we do not think any of them can be sustained. The manner of summoning the special venire was likewise objected to by a challenge to the array. This is also untenable, and it must be overruled. State v. Perry, 44 N.C. 330; State v. Benton, 19 N.C. 196 (opinion by Judge Gaston).

The ordering of a special venire in cases where the prisoner is charged with a capital offense, and the manner in which it shall be summoned or drawn, when so ordered, whether selected by the sheriff under C. S. § 2338, or drawn from the box under C. S. § 2339, are both discretionary with the judge of the superior court. State v. Terry, 173 N.C. 761, 92 S.E. 154; State v. Brogden, 111 N.C. 656, 16 S.E. 170; State v. Smarr, 121 N.C. 669, 28 S.E. 549. And, unless an objection goes to the whole panel of jurors, it may not be taken advantage of by a challenge to the array. State v. Hensley, 94 N.C. 1021; State v. Parker, 132 N.C. 1015, 43 S.E. 830; State v. Mallard, 184 N.C. 667, 114 S.E. 175; Moore v. Guano Co., 130 N.C. 229, 41 S.E. 293; State v. Stanton, 118 N.C. 1182, 24 S.E. 536. In State v. Speaks, 94 N.C. p. 873, it was said that--

"A challenge to the array can only be taken when there is partiality or misconduct in the sheriff, or some irregularity in making out the list."

See, also, State v. Moore, 120 N.C. 570, 26 S.E. 697.

Objections to individual jurors are made by challenges to the polls. This practice comes to us from the common law with the trial by jury itself, and has always been regarded essential to a fair determination of the issues involved. These challenges are of two kinds: Peremptory and for cause.

In all capital cases, under our present practice, the prosecuting officer on behalf of the state is given the right to challenge peremptorily four jurors for each defendant; but he does not have the right to stand any of the jurors at the foot of the panel. C. S. § 4634. The prisoner, or every person on joint or several trial for his life, is allowed to make a peremptory...