State v. Mallard

• Decision Date: 25 October 1922
• Docket Number: 274.
• Parties: STATE v. MALLARD.
• Court: North Carolina Supreme Court

114 S.E. 17

184 N.C. 667

STATE v. MALLARD.

No. 274.

Supreme Court of North Carolina

October 25, 1922

Appeal from Superior Court, Brunswick County; Cranmer, Judge.

E. F Mallard was convicted of embezzlement, and he appeals. No error.

Rountree & Carr and John D. Bellamy & Son, all of Wilmington, for appellant.

James S. Manning, Atty. Gen., Frank Nash, Asst. Atty. Gen., and McLean, Varser, McLean & Stacy, of Lumberton, for the State.

WALKER J.

The defendant was indicted in the court below for willfully fraudulently and corruptly embezzling and converting to his own use, certain money, checks, notes, bonds, mortgages, and other valuable papers and securities, to the amount of $107,000, belonging to the Citizens' Bank of Shallotte in Brunswick county.

The defendant was convicted of the embezzlement at the April term, 1922, of Brunswick county superior court, and from the sentence of five years in the state's prison appealed to this court. There is only one point presented in the appeal. The defendant at the proper time, before pleading to the bill of indictment, entered a plea in abatement, on the ground that the bill of indictment was found by an illegally constituted grand jury. It seems, from the evidence, that in Brunswick county, certainly since 1906, the jurors of the various superior courts have been chosen in the following way:

At the time for the revision of the jury list, at the proper biennial period, the board of commissioners revised the same in the manner provided by the statute, C. S. § 2312. They also caused the names of the jury list to be copied on small scrolls of paper of equal size and put in a box procured for that purpose, having two divisions, marked Nos. 1 and 2. Instead, however, of putting all these scrolls loosely and indiscriminately in box No. 1, they divided the same according to the residence of the taxpayers in the townships of the county. The scrolls of residents of a particular township were enclosed in a large envelope which was sealed. In this way the names of all jurors belonging to a particular township were placed in an envelope marked with the township's name, and then the envelopes were placed in box No. 1. When the time came on to draw jurors for a term of the superior court, the board of county commissioners, having assigned to each township, according to its population, a proper and just proportion of the jurors to be drawn, took from box No. 1 the envelopes containing the scrolls of the taxpayers for a particular township, emptied the same in a hat and had a child, under 10 years of age, to draw from it the number of jurors assigned to that township. They continued this process, thus distributing the jurors throughout the whole county in proportion to the population of the various townships. The names not drawn, but left in each envelope, were again inclosed in that envelope and returned to box No. 1, while the names of the jurors drawn were put in box No. 2, in accordance with the statute. This had been the custom, as above stated, in Brunswick county for many years, and there was no corruption or bad faith in thus drawing the jury, but it was all done with a good motive, if not the best of motives, the purpose being to distribute the jurors equally among the several townships or portions of the county. The grand jury in question, which found the bill, was drawn by a child under ten years of age, from a hat, as above described.

It seems to have been quite definitely decided by the court, in several cases, that the irregular action of the board of county commissioners, where there is no fraud or corruption, and no opportunity for fraud, on the part of the persons interested, in drawing a jury not in strict accordance with the statute, does not invalidate the array.

In State v. Martin, 82 N.C. 672, the commissioners refused to put on the list of jurors names which were drawn because they thought too many were drawn from one end of the county, and, wishing to equalize the number among the different townships, they were put back in the box and others drawn in their stead. More was done, and of a more serious character, than was done here. The court refused to allow the challenge of defendant's counsel to the array in that case. It appears to us that what the commissioners did in State v. Martin departed further from the letter of the law and its substance or spirit than what was done by the commissioners of Brunswick in this particular case. There the commissioners, after drawing the scrolls, and knowing the names thereon, refused to put them on the jury list of their own accord. Here, however, the names already separated or segregated, according to townships, were drawn by a child under 10 years of age, from a hat, after they had been mixed up indiscriminately, and only that number drawn, and put on the list, to which the township, as the commissioners verily believed, was entitled according to its proportion of population. There could therefore be no opportunity or chance for fraud. The general effect of the act of the commissioners was to distribute the jurors to each of the townships throughout the county.

In Moore v. Guano Co., 130 N.C. 229, 41 S.E. 293, Stanley, one of the commissioners, objected to a number of names in Shallotte township, and those names were discarded and returned to box No. 1. Sheriff Walker also objected to several from Town Creek township. When the name of Monroe Hickman was drawn, some one said, "He is right there among the rest," meaning that he was drawn from the same community or neighborhood as others whose names had been drawn. Commissioner Stanley, however, replied, "I want him," and his name was placed on the list. Stanley's own son was selected, he (the father) having stated that his son was so anxious to come to Southport that he had better be taken. The challenge to the array was allowed in that case.

In Boyer v. Teague, 106 N.C. 576, 11 S.E. 665, 19 Am. St. Rep. 547, the defendant, Teague, was sheriff of the county and a party to the particular action. There was no actual or intentional fraud, but the challenge to the array was allowed because the commissioners permitted Teague to participate in the drawing. In each of these cases, though, there was no actual fraud established by proof, yet the action of the commissioners was such as to open the door to fraud and, for that reason, the challenge to the array was allowed, and properly so as the personnel of the jury was made to depend, to some extent, at least, upon the will or conduct, of an interested party.

State v. Hatton Perry, 122 N.C. 1018, 29 S.E. 384, was to this effect:

"It has always been held that the regulations in the Code, §§ 1722 and 1728 [[now C. S. 2312 to 2319, inc.] are directory only to the board of county commissioners, and, while they should be observed, a failure to do so did not vitiate the venire in the absence of bad faith or corruption on the part of the county commissioners."

All of the previous cases seem to have been cited in that case.

In State v. Dixon, 131 N.C. 808, 42 S.E.

944, it appears that, at the time of the revision of the tax list in June, 1901, the commissioners added no new names to the jury list, but had purged the box by taking out the names of those who had not paid their taxes. This, though an irregularity, was held by the court not to be sufficient ground for challenge to the array, citing State v. Perry, supra, and other decisions, and then proceeded:

"Those cases are not overruled in Moore v. Guano Co., 130 N.C. 229, which merely holds that the conduct of the county commissioners in that case went beyond mere irregularity, and was as to a matter so serious in its nature as to invalidate the panel drawn in such manner."

In State v. Alfred Daniels, 134 N.C. 641, 46 S.E. 743, the court again reaffirms the principles set forth in the older cases. There the county commissioners failed to make the prepayment of taxes a qualification for persons on the jury list. Again, the court, in that case, distinguishes Moore v. Guano Co., supra.

In State v. Teachey, 138 N.C. 587, 50 S.E. 232, the board of commissioners revised the jury list at a time not fixed by the statute, and included in it names of persons otherwise qualified, but which did not appear upon the tax list. It was held that this was a sound objection to the panel.

In State v. Banner, 149 N.C. 521, 63 S.E. 84, the objection was that three years had elapsed without a revision of the jury list by the board of commissioners. It was held that this did not avoid the panel. There was a challenge to the array in Lanier v. Greenville, 174 N.C. 311, 93 S.E. 850, and the challenge was overruled, though the irregularities in that case were apparently much greater than they are in this. The subject is referred to again in State v. Wood, 175 N.C. 819, 95 S.E. 1050.

It is admitted by the state in this case that the defendant is entitled to have the bill of indictment found by a grand jury, the individual members of which are legally qualified to act as grand jurors. State v. Baldwin, 80 N.C 390; State v. Smith, 80 N.C. 410; State v. Watson, 86 N.C. 624; State v. Sharp, 110 N.C. 604, 14 S.E. 504; State v. Paramore, 146 N.C. 604, 60 S.E. 502. In this instance, however, there is not the slightest attack upon the competency of any individual upon the grand jury to serve as a grand juror. It is admitted, and so found by the court, that there was no fraud or collusion in the selection of this particular grand jury. There was a mere irregularity, which in itself was intended to promote justice and to prevent fraud and collusion. In every case cited above, from State v. Seaborn, 15 N.C. 305, to State v. Perry, supra, such irregularities have been held not a ground of challenge...