State v. Perry

• Decision Date: 22 March 1898
• Court: North Carolina Supreme Court
• Parties: STATE . v. PERRY.

29 S.E. 384

122 N.C. 1018

STATE .

v.PERRY.

Supreme Court of North Carolina.

March 22, 1898.

Appeal—Law of Case—Record—Presumptions— Indictment—Finding—Grand Jurors —Infants—Verdicts.

1. Where a new trial was granted on a former appeal, such judgment is an adjudication only on the matters ruled on in that opinion, though other matters were assigned as error.

2. Where two bills are found by a grand jury, and the prisoner is tried on both, if either is good it supports a verdict of guilty.

3. It is immaterial that one of the grand jurors who found the indictment was an infant when his name was put on the jury list, if he was of age when he served on the jury, since the failure of the county commissioners to observe the regulations of Code, §§ 1722, 1728, relative to the revision of the jury list, does not vitiate the venire, in the absence of bad faith or corruption on their part.

4. It is no objection to a grand juror 21 years old that he has not paid his taxes for the preceding year, as he could not have been liable for the poll tax, and may not have had any property liable to taxation, grand jurors not being required to be freeholders.

5. An indictment found by a grand jury of 12 men is valid if all concur.

6. An indictment is presumed to have been found by the requisite number of jurors, in the absence of proof on the subject.

7. Where a case on appeal is not served till 11 days after adjournment of court, all assignments of error save those to matters of record will be considered immaterial.

Appeal from superior court, Beaufort county; Brown, Judge.

Hatton Perry was convicted of rape, and he appeals. Affirmed.

Charles F. Warren, for appellant.

The Attorney General and John H. Small, for the State.

CLARK, J. This case was here at the last term (121 N. C. 533, 27 S. E. 997), and a new trial was then granted. The prisoner, having been found guilty by a second jury, again appeals. His first two exceptions are to the overruling the pleas of abatement as to the bill, which were also presented as exceptions on the former appeal. The attorney general contends that those matters are res judicata. Where there is an affirmance of a judgment, this necessarily is an adjudication upon every assignment of error, and of any matter which might have been urged (whether it was or not) in arrest of judgment. State v. Speaks, 95 N C. 689. But here there was a new trial granted upon another point, and the judgment was only res judicata upon the errors ruled upon in the opinion. Of course, errors assigned in the former trial as to matters occur ring in the progress of that trial, as the admission of evidence, instructions to the jury, and the like, have become immaterial now, whether we passed upon them or not, as the trial is de novo. But the exceptions to the overruling the pleas in abatement to the bill, not having been passed upon on the former appeal, were not res judicata, and, being again made before the judge below, an exception lies to his overruling the same, unless the solicitor had made it immaterial, as he might have done, by sending a new bill. There were two bills found at the February term, 1897, and, the prisoner having been tried upon both, they are, in effect, counts in the same bill (State v. McNeill, 93 N. C. 552; State v. Johnson, 50 N. C. 221), and, if either is good, the good count supports the verdict (State v. Toole, 106 N. C. 736, 11 S. E. 168, and numerous cases there cited).

The plea in abatement to the first bill is that one of the grand jurors who found the bill was not of age till the 22d of September, 1896, and consequently was not of age when the jury list was revised, on the 1st Monday in September, 1896, and has not paid his taxes for the year previous (1895). But he was of age when he sat as grand juror at February term, 1897, and was of age when drawn as a juror in January, 1897. There was therefore no defect of which the prisoner could complain. State v. Smarr, 121 N. C. 669, 28 S. E. 549. If competent when his name is put on the jury list, but incompetent when he serves, it is ground of objection, as his competency depends upon his status at the time of service. State v. Wilcox, 104 N. C. 847, 10 S. E. 453. It has always been held that the regulations in Code, §§ 1722, 1728, are directory only to the board of county commissioners, and, while they should be observed, a failure to do so does not vitiate the venire, in the absence of bad faith or corruption on the part of the county commissioners. If this were not so, there has probably never been a valid venire, for it is almost impossible but that the county commissioners, in revising the jury list, should put in the jury box some names which should not be put therein, and should fail to put in some which should be placed therein. State v. Smarr, supra; State v. Stanton, 118 N. C. 1182, 24 S. E. 536; State v. Durham Fertilizer Co., 111 N. C. 658, 16 S. E. 231; State v. Wilcox, 104 N. C. 847, 10 S. E. 453; State v. Hensley, 94 N. C. 1021; State v. Martin, 82 N. C. 672; State v. Grifflce, 74 N. C. 316; State v. Haywood, 73 N. C. 437.

Consequently the test is not whether the name of a juror was properly or improperly placed on the jury list by the commissioners, but the objection is to him when he serves. The judge, before the grand jury is impaneled, always asks (or should do so) "if any of them have failed to pay their taxes for the preced-ing year, or have a suit pending and at...