State v. Paramore
| Decision Date | 26 February 1908 |
| Citation | 60 S.E. 502,146 N.C. 604 |
| Parties | STATE v. PARAMORE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Lyon, Judge.
H. A Paramore and another were indicted for embezzlement, and from a judgment quashing the indictment, the state appeals. Affirmed.
Under Revisal 1905, § 1976, providing that the board of commissioners of each county shall draw the jurors for a term of the superior court, and deliver the list to the sheriff who shall summon the persons therein named to attend, where a list of names of grand jurors so drawn was delivered to the sheriff, and he substituted for one of such names the name of another person who appeared in answer to the summons and served as a grand juror, such jury was not properly constituted, and an indictment returned by it must be quashed.
The general rule that the provisions of the law for drawing and summoning jurors are directory does not permit one to serve on a grand jury where his name was substituted by the sheriff for a name that was properly drawn from the jury box.
Defendants were indicted for embezzlement, and moved to quash the indictment upon the ground that the grand jury had been improperly constituted. With reference to this matter the judge found the following facts: First. William McLawhorn was summoned as a juror for April term, 1907, and his name was returned to the court by the sheriff as a juror with 35 other names, making 36 in all on the jury list. When the court convened, William McLawhorn was one of the first 18 persons drawn and selected as grand jurors, and he served on the grand jury for the term at which the bill of indictment was found against the defendants. Second. The name of William McLawhorn was not in the jury box when the commissioners of the county drew the jurors to serve at the April term, and his name was not, therefore, drawn from the jury box, but the name of Woodie McLawhorn was drawn by the commissioners as a juror to serve at the said term, and the sheriff, confusing the two names, placed the name of William McLawhorn instead of that of Woodie McLawhorn on the jury list, and summoned William McLawhorn in the place of Woodie McLawhorn to serve as a juror, and the said William McLawhorn appeared, in answer to the summons, and served as a juror. Woodie McLawhorn, whose name was drawn from the jury box by the commissioners, was not summoned as a juror and did not serve. Upon the facts so found by the court, the indictment was quashed. The state excepted to the ruling of the court, and appealed.
Assistant Attorney General Clement, for the State.
Moore & Long, for appellees.
The defendant, upon his arraignment and before pleading, moved to quash the indictment, and supported his motion by affidavits. This was substantially a plea in abatement, which is the proper and regular method of attacking the bill upon the ground stated in the record. State v. Haywood, 73 N.C. 437. Provision is made by the law for drawing and summoning jurors. Revisal 1905,§§ 1964, 1965, 1966, and 1976. The requirements of the law, with very rare exceptions, have been held by this court to be directory. State v Daniels, 134 N.C. 646, 46 S.E. 743; State v. Haywood supra. The statute provides that the board of commissioners of each county shall draw the jurors who are to serve at a term of the superior court, from box No. 1, which contains the scrolls containing the names of those who are...
To continue reading
Request your trial