State v. McGimsey

• Decision Date: 31 January 1879
• Citation: 80 N.C. 377,30 Am.Rep. 90
• Court: North Carolina Supreme Court
• Parties: STATE v. CHARLES P. MCGIMSEY.

30 Am.Rep. 90

80 N.C. 377

STATE

v.CHARLES P. MCGIMSEY.

Supreme Court of North Carolina.

January Term, 1879.

PETITION for a Writ of Certiorari filed by the prisoner and granted at January Term, 1879, of THE SUPREME COURT.

The record sent up in obedience to the writ shows that the prisoner was tried, for the murder of one Lawson Weaver, at Fall Term, 1878, of BUNCOMBE Superior court, before Avery, J.

The jury were discharged before verdict, and the following order entered of record: “The jury having been sworn and impannelled in this case on Thursday evening of the second and last week of the term, and the trial having been commenced on said evening and lasted until 12 o'clock on Saturday night of the regular term, and it now appearing at 6 o'clock on Sunday evening following that the jury cannot agree on a verdict, it is therefore ordered by the court that a juror be withdrawn and a mistrial had, and that the prisoner be remanded to jail till the next term of the court.”

His Honor filed the following additional statement which was also sent up by the clerk as part of the record: The charge was delivered to the jury and they retired between 12 and 1 o'clock on Sunday morning after the expiration of the regular term, and the sheriff under instructions of the court, announced that the court was adjourned until Sunday morning at 9 o'clock, at which hour the prisoner was brought in court, and it appearing that the jury had not agreed, the sheriff announced an adjournment until 6 o'clock p. m. of the same day, and the prisoner was remanded. At 2 o'clock the judge went into the court house at the request of the jury, communicated through the officer in charge, for further instructions, and the solicitor, the prisoner's counsel and the prisoner being present in court, the jury were brought in and asked in the usual manner if they had agreed, and the foreman said they had not, but desired further instructions. The court reiterated the charge upon the point as requested, and immediately the said juror and another juror stated, “with that instruction they were satisfied the jury would never agree.” And the judge said before the jury had again retired and in their hearing, but addressing the counsel as well as the jury, “we will meet again at 6 o'clock and then see what can be done”--considering the question at that time as to whether he had the power to take the jury with him, in case they did not agree, to Madison county where he was required by law to hold court the following day, Monday. He then prepared the order set out above, and on coming into court at 6 o'clock and ascertaining that the jury had not agreed, directed the clerk to enter said order on the minutes of the court, after stating that he would have to order a mistrial. The prisoner was remanded to jail and the court adjourned.

Attorney General, T. F. Davidson and J. L. Henry, for the state .

Messrs. Carter, Merrimon and McLoud, for the prisoner .

ASHE, J.

The question presented for the consideration of this court is, whether the court below had the right to discharge the jury who were impannelled in the case, and hold the prisoner for another trial.

It is a maxim of the common law that no person shall be twice put in jeopardy of life or limb; and this principle founded in humanity has been incorporated in the constitution of the United States. It has been adopted and acted upon in our courts from the foundation of the government to the present time. We are aware that in many of the states there has been a strong tendency to ignore the maxim of the common law and submit the question to the discretion of the courts. But in this state, beginning with Garrigues' case in 1795, reported in 1 Haywood, through a current of decisions down to the case of State v. Honeycutt, 74 N. C., 391, the principle of the common law has been steadily kept in view and adhered to with some relaxation of the rule. State v. Spier, 1 Dev., 491; Ephraim, 2 D. & B., 162; Prince, 63 N. C., 529; Alman, 64 N. C., 364; Jefferson, 66 N. C., 309.

By these and other decisions of this court, it has been uniformly maintained that where a jury has been charged in a capital felony and the prisoner's life put in jeopardy, the court has no power to discharge the jury and hold the prisoner for a second trial, except in cases of absolute necessity. These cases of necessity form exceptions to the general rule, and in every case where the court undertakes to exercise the power of discharging a jury in a capital case, it will be error unless brought within one of the exceptions. The inability of a jury to agree upon a verdict has been recognized by our courts as an exception to the general rule. See cases of Jefferson, Prince, and Honeycutt, supra.

In Jefferson's case the prisoner was discharged, but PEARSON, C. J., in the opinion of the court, says: “If His Honor had remained at court ready to instruct the jury and had found the fact that the case had been with the jury four days, and that from declarations of jurors in the presence of the others and in open court, before him, he was satisfied the jury would not agree, and that it was useless and unnecessary for the purposes of the case to continue the term longer, and had thereupon discharged the jury, there would have been no error;” and in Honeycutt's case in giving the opinion he said the conditions laid down in Jefferson's case had all been complied with: “The case had been with the jury for six days, and His Honor, not content with the declarations of some of the jurors in presence of each other in open court before him, polls the jury on that question, and on this evidence finds as a fact that the jury could not agree and orders a discharge of the jury and the prisoner be held for trial at the next term.” And he proceeded to say “that the supposed facts in Jefferson's case were fully considered by the members of the court, and although that is a dictum as rather matter used for illustration, after full consultation we now hold it to be the law of the land.” This dictum, then, is the law of this state, and the last expression of judicial determination on this subject. Let us then see if in the present case there has been a compliance with the conditions laid down in that dictum.

From the record it appears that the jury were impannelled in the case on Thursday evening of the second week of the term, and the arguments were closed and the jury retired to make up their verdict between twelve and one o'clock on Saturday night, and His Honor for the purpose of the trial had the court adjourned until the next morning, Sunday, at nine o'clock, when it being ascertained that the jury had not agreed, the...