State v. Levy
| Decision Date | 16 April 1924 |
| Docket Number | (No. 274.) |
| Citation | 122 S.E. 386 |
| Parties | STATE. v. LEVY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cumberland County; Stack, Judge.
Joel Levy was convicted of murder in the second degree, and he appeals. No error.
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.
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 High-smith 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 Tolerbrought 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).
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 challenge of 12 jurors and no more. C. S. § 4633.
In all other cases of a criminal nature, a peremptory challenge of two jurors is allowed in behalf of the state for each defendant; and every person on joint or several trial for an offence, other than capital, is given the right of challenging peremptorily, and without showing cause, four jurors and no more.
In all civil actions, each side is allowed four peremptory challenges. C. S. § 2331.
Blackstone, commenting upon this right of peremptory challenge, says in his Commentaries (4 Bl. Com. 353):
"In criminal cases, or at least in capital ones, there is in favorem vitro, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons: 1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at' liberty, if he pleases, peremptorily to set him aside"—quoted with approval in Lewis v. U. S., 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1014.
At common law challenges to the polls were divided into four classes: (1) Propter respectum, as where the juror was a lord of Parliament, when he could be challenged by either side or by himself; (2) Propter defectum, being a lack of some qualification required by law, such as residence, age, property, etc.; (3) propter affectum, on account of bias, suspicion or partiality, prejudice, or the like; and (4) propter delictum, for criminality, as where the jurors had been convicted of an infamous crime.
But with us, speaking generally, challenges to the polls are usually divided into two classes only: Propter defectum, which is the lack of some special legal requirement; and propter affectum, which goes to the juror's bias or partiality. Under this latter head, the challenges may be for the principal cause or to the favor. State v. Benton, 19 N. C. p. 212.
The principal challenges to the polls now recognized by our practice, and of which either side may take advantage at the trial, are briefly summarized as follows:
(1) If the person called for jury service be not a bona fide resident of the county in which the trial is being held, or from which the jury is ordered to be summoned (C. S. § 473), he may be stood aside for this reason. State v. White, 68 N. C. 158; State v. Upton, 170 N. C. 769, 87 S. E. 328.
(2) If he be delinquent at the time of trial in the payment of his taxes for the preceding year, he may be excused on this ground. State v. Sherman, 115 N. C. 773, 20 S. E. 711; State v. Davis, 109 N. C. 780, 14 S. E. 55; State v. Gardner, 104 N. C. 739, 10 S. E. 146; State v. Hargrave, 100 N. C. 484, 6 S. E. 185; Sellers v. Sellers, 98 N. C. 13, 3 S. E. 917; State v. Haywood, 94 N. C. 847.
(3) If he have a suit pending and at issue in the superior court of the county ho may be challenged for this cause. State v. Hopkins, 154 N. C. 622, 70 S. E. 394; State v. Spivey, 132 N. C. 989, 43 S. E. 475; Hodges v. Lassiter, 96 N. C. 351, 2 S. E. 923; State v. Viek, 132 N. C. 997, 43 S. E. 626.
(4) If he be a minor, or less than 21 years of age, he is not qualified to sit as a juror. State v. Griffice. 74 N. C. 316; State v. Lambert, 93 N. C. 618.
(5) If he be an atheist, or deny the existence of Almighty God, he is presumed to be insensible to the obligations of an oath. State v. Davis, 80 N. C. 412; McOlure v. State, 1 Yerg. (Tenn.) 206. See, also, Const, art. 6, § 8, and Shaw v. Moore, 49 N. C. 25.
(6) If he be related by blood or marriage to any of the parties within the ninth degree, he would be subject to challenge. State v. Potts, 100 N. C. 457;1 State v. Perry, 44 N. C. 330; State v. Baldwin, 80 N. C. 390; State v. Ketchey, 70 N. C. 621; State v. Shaw, 25 N. C. 532.
(7) If he be wanting either in intelligence or in good moral character, an objection to his competency on either one...
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State v. Anderson
...is not sustained. The motions made in connection with the jury do not amount to a challenge to the array. State v. Levy, 187 N. C. 581, 122 S.E. 386; Lupton v. Spencer, 173 N.C. 126, 91 S.E. 718. Indeed, the instruction of the court to a deputy sheriff to summon a number of men to serve as ......
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