State v. McNeill

• Citation: 93 N.C. 552
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1885
• Parties: STATE v. MARY MCNEILL, et als.

93 N.C. 552

STATE

v.MARY MCNEILL, et als.

Supreme Court of North Carolina.

October Term, 1885.

Indictment for LARCENY, tried before Meares, Judge, and a jury, at May Term, 1885, of the Criminal Court of NEW HANOVER county.

There was a verdict of guilty, and the defendants appealed.

The facts sufficiently appear in the opinion.

Attorney General, for the State .

Messrs. Frank H. Darby and Russell & Ricaud, for the defendants .

MERRIMON, J.

The interesting and important question, whether or not in this State, an indictment presented by the concurrence of only nine members of a grand jury, as allowed by the statute, (Acts 1885, ch. 63, §18), can be upheld as valid under the Constitution, is not presented by the record in this case, because, it appears affirmatively in the record that the indictment was presented in the manner and form, therein set forth, by twelve “good and lawful men, duly summoned, drawn and sworn, and charged to inquire for the State, of and concerning all crimes and offences,” &c. And upon the back of it is the entry, ““a true bill,” signed by the foreman of the grand jury. This lauguage implies, and the presumption--not the conclusive presumption, however--is, that every grand juror concurred in the presentment. This is so generally. So that, if the grand jury should consist of eighteen members, the presumption would be, that all concurred in making the presentment, nothing to the contrary appearing. There is nothing in this case that renders it an exception to the general rule. There is nothing in the record, showing, or tending to show, affirmatively or negatively, that a less number than the whole of the grand jury concurred.

The defendants pleaded in abatement, that the indictment was presented, only nine members of the grand jury concurring; but they offered no evidence to prove the plea, and of course it failed. Unless it shall appear in the record, that a less number than twelve of the grand jury concurred in presenting the indictment, the defendant must aver by proper plea and prove the fact if he would avail himself of it. As it appears in this case that twelve concurred, the question sought to be presented under the statute does not arise. State v. Cox, 6 Ired., 440; State v. Grimes, 86 N. C., 632; Young v. State, 6 Ohio, 435; Turner v. Commonwealth, 6 Metcalf, 225; Hudson v. State, 1 Blackfred, 320.

There were four indictments against the defendants, in each of which they were charged in a first count with a distinct larceny, and in a second with receiving stolen goods, knowing the same to have been stolen. Upon motion of the Solicitor for the State, the Court treated them as if the several offences charged in them had been embraced in one indictment, in eight distinct counts, each charging a distinct offence, but required the Solicitor to elect at the close of the testimony in chief of the State, which of the several indictments he would insist upon a conviction in.

The defendants objected, and excepted, but interposed no motion to quash. Such practice is not common, but in our judgment, there is nothing in principle or reason that necessarily forbids it, if the defendant's rights of peremptory challenge of jurors shall be allowed, and the Court shall require the prosecuting officer to elect before the defendants offer their evidence, which particular charge he will insist upon.

This practice may be allowed, observing the restrictions mentioned, in the sound discretion of the Court, but it ought to be done with caution, and only in cases where the Court shall be satisfied from the peculiar circumstances of the case, that the due administration of criminal justice requires it, and moreover, the Court should be careful that the defendant suffers no prejudice from confusion, or from evidence not pertinent to the charge insisted upon. This the Court can guard against ordinarily, by proper caution to the jury, and in case of a verdict of guilty that is probably not warranted by the evidence, by granting a new trial. It is settled in this State, that when different felonies of the same nature are embraced in different counts in the indictment, a motion to quash made in apt time may be allowed by the Court, but the Court may, in its discretion, refuse to allow it, and require the prosecuting officer to elect the counts on which he will ask a verdict of guilty before the defendants shall begin the taking of the evidence in his behalf. State v. Reel, 80 N. C., 442, and the cases there cited. State v. King, 84 N. C., 737. Indeed, such seems to be the generally accepted practice. Bish. Cr. Prac., §81; Whar. Cr. Law, §416; and see the general rule stated, and a great number of cases cited in 58 Am. Decisions, 248, et seq.

In State v. Johnson, 5 Jones, 221, it was held that a second and new indictment for the same offences, was in effect adding a new count to the first indictment, and if the counts were inconsistent, this would be ground for a motion to quash, or the Court might require the prosecuting officer to elect the count on which he would ask for a verdict of guilty. This case was...