State v. Perry

• Decision Date: 30 June 1853
• Citation: 44 N.C. 330
• Court: North Carolina Supreme Court
• Parties: STATE v. SAMUEL P. PERRY.

44 N.C. 330

STATE

v.SAMUEL P. PERRY.

Supreme Court of North Carolina.

June Term, 1853.

The relationship of a juror to the prisoner, whether by consanguinity or marriage, is a good cause of principal challenge on the part of the State, but such relationship must be within the ninth degree.

The great grandmother of the juror and the grandmother of the prisoner were sisters:-- Held, that the juror is within the prescribed degree, and was properly rejected.

The jury, after they were empannelled, went, in a body, under the care of the sheriff, a mile and a half into the country for recreation; were kept together, no one was permitted to speak to them, nor were they permitted to speak to any one, and upon returning, they immediately retired to their room:-- Held, there was no improper conduct in this, nor was it a separation of the jury.

The Court below is the exclusive judge whether a witness understands the obligations of an oath, and has intelligence sufficient to give evidence.

It is not the duty of the officer prosecuting for the State, to examine, on a criminal trial, all the witnesses who were present at the perpetration of the act.

If it appears that an order for a special venire was obtained, and that the jurors attended, it is not necessary that the record should positively shew, that the writ was issued by the Clerk of the Court. It will be presumed that the writ did issue.

To constitute a legal jury under the Act of 1836, ch. 35, sec. 17, it is not necessary that any jurors should be summoned under the special venire. The prisoner has a right to the full benefit of the order of the Court directing a special venire, and if the order has not been obeyed, it would be a good objection to the Court's proceeding on the trial; if however, the prisoner selects his jury, without objection on that ground, it is a waiver of it.

It is not necessary to the legal constitution of a Grand Jury, or their legal transaction of business, that an officer should be appointed to wait upon them. It is convenient and proper that they should have such an officer, and when a constable is appointed, he must take the prescribed oath--but not so with the sheriff, who being a sworn officer of the Court, can properly attend on the Grand Jury without such oath having been administered to him.

(The cases of State v. Martin, 2 Ire. Rep. 101, and State v. Tilghman, 11 Ire. Rep. 513, cited and approved.)

THIS was an indictment for MURDER, tried at Spring Term, 1853, of Wake Superior Court, before his Honor Judge BAILEY.

The facts of the case are sufficiently set forth in the opinion delivered by the Court.

G. W. Haywood, Miller and P. Busbee, for the defendant .

Attorney General, for the State .

NASH, C. J.

The prisoner, through his counsel, has assigned several reasons to show that he is entitled to a venire de novo.

The first is for an alleged error in the Court in setting aside a juror, on the challenge of the State, as of being of kin to the prisoner. The great grandmother of the juror Ray, was the sister of the grandmother of the prisoner. Lord Coke says that relationship is a good cause of principal challenge, “no matter how remote soever, for the law presumeth that one kinsman doth favor another before a stranger.” Thomas's Coke, 3 vol. 518. Mr. Chitty, in the 3 vol. of his Criminal Law, lays down the same doctrine, with the exception that the relationship must be within the ninth degree, although it is by marriage; and Mr. Blackstone, 3 vol. of his Commentaries, 360, declares the rule to be as stated by Mr. Chitty. In this case, the juror Ray was within the prescribed degree related to the prisoner. From the grandmother were three degrees, and from the great grandmother four, making in the whole seven degrees, which was a cause of principal challenge on the part of the State, and the juror was properly rejected.

The second reason assigned, was the alleged improper conduct of the jury. This consisted in the jury's going on Sunday after they were empannelled, a mile and a half into the country for recreation. It is stated in the bill of exceptions, that they went in a body under the care of the sheriff, that they were kept together and no one spoke to them, nor did they speak to any one, and upon their return they immediately retired to their room. It was argued before us, as if this was a separation of the jury. This is not so. A separation of a jury is the departure of one or more jurors from their fellows, or the whole of the jurors departing from each other. But here there was no separation, no departing of any of the members of the jury from their fellows; they kept together in one body during the whole time they were absent from the court room after receiving the charge of the Judge, and were in the care of the sheriff. The law does require that the jury, after being charged with the prisoner, shall be kept together in one body, but it nowhere directs where they shall be kept. Nothing is more common, than for a jury, in a protracted trial where many days are consumed in its investigation, to retire under the charge of an officer to some private room to procure such refreshments as may be necessary, or to sleep at night. While therefore they do keep together, either in a house or in the open air, and hold no converse with any one, their being at the one place or the other, can have no effect upon their verdict--they have violated no duty. In this case, they went into the open field--it was the Sabbath day--no business was transacting. To require them to remain shut up...