State v. Parker

• Citation: 43 S.E. 830,132 N.C. 1014
• Parties: STATE v. PARKER.
• Decision Date: 07 April 1903
• Court: North Carolina Supreme Court

43 S.E. 830

132 N.C. 1014

STATE v. PARKER.

Supreme Court of North Carolina

April 7, 1903

Appeal from Superior Court, Durham County; McNeill, Judge.

John Parker was convicted of carnally knowing and abusing a female under the age of 10 years, and appeals. Reversed.

Jones Fuller, for appellant.

The Attorney General, for the State.

WALKER J.

The defendant was indicted for unlawfully and carnally knowing and abusing a female under the age of 10 years; the indictment having been drawn and found under section 1101 of the Code, by which the offense is made a capital felony. The defendant was convicted, and to the judgment pronounced he excepted and appealed. He assigns two errors as having been committed by the court during the course of the trial.

A special venire of 25 freeholders was summoned under the order of the court, whose names were drawn from the jury box, in the presence and under the direction of the court, by a boy who was over 10 years of age, and five of the jurors so drawn were taken and served upon the jury. There does not appear to have been any challenge or objection to any of them. So far as it does appear, they were each and all perfectly acceptable to the state and defendant. After the verdict of guilty had been returned by the jury, the defendant, through his counsel, moved in arrest of judgment upon the ground that the special venire had been drawn by a boy over 10 years of age, and that five of the venire had served as jurors in the case. The motion of the defendant to arrest the judgment was properly overruled. It was too late after the verdict to present any objection to the manner of selecting the jurors for the special venire by a motion in arrest of judgment. Even if the motion be treated as substantially one for a venire de novo (and in a case of this magnitude we would be so disposed to treat it, at least with the consent of the Attorney General, provided that there was real merit in the motion), it could not be sustained, as the proper method of taking advantage of the irregularity is by a challenge to the array, or by a motion to quash the panel before the jury are sworn and charged with the case. As this was not done, there was a waiver of the objection, and the defendant forfeited his right to insist upon it thereafter. The regulations and requirements concerning the drawing of a jury or of a special venire may be directory, but they should be strictly observed. A failure, though, to follow the directions of the statute, will not invalidate the panel in the absence of bad faith or corruption, or other adequate cause for setting it aside. State v. Perry, 122 N.C. 1021, 29 S.E. 384; State v. Dixon, 131 N.C. 810, 42 S.E. 944. In State v. Underwood, 28 N.C. 96, where the grand jury was drawn by a boy 13 years of age, and it was contended that such illegal drawing might have affected the composition of the petit jury, the prisoner moved for a new trial, and also in arrest of judgment; and the court held that the objection, if a valid and sufficient one at any time, should have been made after the petit jury were sworn, and should be in the form of a challenge to the array. We believe the general rule to be that, where the objection is to the whole list or panel, it must be taken by challenge to the array or by motion to quash the panel, which must be made as soon as the facts which warrant it become known; and it is generally held that the challenge or objection must be interposed before entering on the formation of the jury, and before the interposition of challenges to the polls, or before the jury has been completed or made up or has been sworn, or before entering on the trial; and it is certainly too late after trial and verdict, on a motion for a new trial. 12 Enc. Pl. & Practice, 424; State v. Speaks, 94 N.C. 865; State v. Boon, 82 N.C. 637; State v Douglass, 63 N.C. 500. The court therefore did not err in overruling the motion to arrest the judgment.

But we think there was error committed by the court in the admission of testimony to which the defendant duly objected, which entitles him to a new trial. The defendant testified in his own behalf after the state had closed its evidence, and on the cross-examination the solicitor was permitted to ask him if his statement during the trial below did not contradict that made at the preliminary hearing before the committing magistrate, and proposed to call his attention to certain statements of the defendant contained in the evidence before the magistrate, which had been reduced to writing and signed and sworn to by him. It appeared that the defendant had been sworn before he testified at the investigation before the magistrate, and that his testimony was taken in the presence of other witnesses. It is also stated in the case that he was examined by the magistrate "after being cautioned." That is all. It does not appear in what way he was cautioned or what was said to him by the magistrate before he testified. It is provided by the statute (Code, §§ 1145-1149) that, after examining the complainant and the witnesses for the prosecution, the magistrate shall then proceed to...