State v. Morrison
| Decision Date | 30 June 1838 |
| Citation | 20 N.C. 113 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. BENJAMIN MORRISON. |
On the trial of a misdemeanor the court has a discretionary power to discharge the jury before they have rendered a verdict, and to require the defendant to be again put upon his trial for the same offense.
The defendant was indicted for an assault upon one Jonathan Holly, and pleaded "not guilty," and issue was joined thereon. At Spring Term, 1837, of Cumberland Superior Court, a jury was empanelled to try this issue, and being unable to agree upon a verdict it wasordered by the court that a juror be withdrawn. This was done on Friday before the end of the term, and against the consent of the defendant. At Spring Term, 1838, before his Honor, Judge Dick, the solicitor for the State demanded that the defendant should again be put upon his trial on the aforesaid issue. The defendant thereupon moved the court to discharge him, on the ground that a jury had, at Spring Term, 1837, being regularly empanelled to try the issue, and that the court had discharged the jury against his consent and without any sufficient legal cause. His Honor overruled the defendant's motion,
and the defendant then pleaded specially the facts above stated, in bar of any further prosecution. To this special plea, Mr. Solicitor Troy entered a general demurrer. The court pro forma overruled the demurrer, and ordered the defendant to be discharged, and from this judgment the solicitor appealed.
DANIEL, J., after stating the case as above, proceeded as follows: It seems to us that a plea of matters appearing on the record in the case itself, is of a very extraordinary character, but as no objection has been taken to this irregular mode of proceeding we shall consider the point, which upon the plea and demurrer was evidently intended to be submitted.
In the case of the State v. Ephraim (ante, 2 vol., page 162) we held that a jury charged in a case of capital felony, cannot be discharged before rendering a verdict, but for evident, urgent, overruling necessity, arising from some matter occurring during the trial, which was beyond human foresight and control. But in the trial of issues on indictments for misdemeanors the rule is different. All the learning on this subject was examined and reviewed by the court in the case of the People v. Olcott, 2 Johnston's Cases, 301. The Court there proceeded to say: ...
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