State v. Martin
| Decision Date | 31 January 1880 |
| Citation | 82 N.C. 672 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. J. MARTIN and others. |
OPINION TEXT STARTS HERE
INDICTMENT for Larceny, tried at Fall Term, 1879, of RUTHERFORD Superior Court, before Buxton, J.
The special instructions asked for by the defendants on the trial were refused, and after a verdict of guilty they moved for a new trial and in arrest of judgment, both of which motions being overruled, the court pronounced judgment and the defendants appealed. The exceptions taken below are set out in the opinion of this court. The articles alleged to have been stolen were taken from the prosecutor's store at various times during the months of August and September.
Attorney General, for the State .
Messrs. Hoke & Hoke, for the defendants .
The defendants' counsel challenged the array of regular jurors, on the ground that they were irregularly drawn. The evidence is that they were drawn from box No. 1 by a boy under ten years of age. Some names were drawn and not used, because the county commissioners 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 and others drawn in their stead. While the manipulation of the names of jurors as practiced in this case is to be seriously deprecated and condemned, as tending to corruption and the obstruction of the impartial administration of justice, there seems to have been no actual wrong done or intended on this occasion. And as the jury were drawn under the provisions of chapter 17, section 229 of Battle's Revisal (act of August 4, 1868) prescribing how the jury lists of the several counties shall be prepared by the county commissioners, and this court has construed that section to be directory only, and not mandatory, the exception cannot be sustained. State v. Haywood, 73 N. C., 437. According to the authority of that case, where there is any informality in drawing or impaneling grand jurors, a plea in abatement on the arraignment and not a motion to quash is the proper practice. On the arraignment in this case the defendants pleaded not guilty; after that it was too late to take objection to any irregularity in drawing the jury. State v. Davis, 2 Ired., 153; State v. Baldwin, 80 N. C., 390; State v. Blackburn, Ibid., 474; State v. Liles, 77 N. C., 496; State v. Griffice, 74 N. C., 316. But in this case it really makes no difference when it was taken.
The first special instruction asked was, that the articles charged to have been stolen were taken at different times, and therefore constituted different offences and cannot be united in the same indictment: His Honor very properly refused this instruction, for it was a continuing transaction, and in such cases, though there may be several distinct asportations, the parties may be indicted for...
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