State v. Rogers
Decision Date | 28 May 1913 |
Citation | 78 S.E. 293,162 N.C. 656 |
Parties | STATE v. ROGERS et al. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Foushee, Judge.
Robinson Rogers and another were convicted of manslaughter, and appeal. Reversed, and new trial granted.
As understood at common law and as used in the federal and state Constitutions, a "jury" signifies 12 men, duly impaneled, and a less number is not a jury.
Before impaneling the jury, the solicitor announced that he would not ask for a verdict of murder in first degree. One of the jurors was taken ill, and the trial proceeded with 11 jurors. The defendants were convicted of manslaughter and sentenced to the penitentiary. In apt time they moved in arrest of judgment as well as for a new trial upon the ground that they were not tried by a lawful jury of 12 men. His honor, upon such motion, rendered the following judgment:
And thereupon the court excused said juror and directed the trial to proceed. That the two defendants are men of more than ordinary intelligence; that McCracken is about 27 or 28 years of age, and the defendant Rogers, about 40 years of age, and their families are prominent and wealthy. That both these defendants are possessed of sufficient mental capacity to understand and did understand that both they and their counsel were entering into said agreement and electing to proceed with 11 jurors by their assent and that the court consented to this course.
W. T. Crawford, of Waynesville, Bryson & Black, of Bryson City, J. M. Queen, of Waynesville, and J. W. Stamey, of Clyde, for appellants.
The Attorney General and Assistant Attorney General, for the State.
It is elementary that a "jury," as understood at common law and as used in our Constitutions, federal and state, signifies 12 men duly impaneled in the case to be tried. A less number is not a jury. Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873. In Lamb v. Lamb, 4 Ohio St. 167, Chief Justice Thurman said: "That the term 'jury,' without addition or prefix, imports a body of 12 men in a court of justice, is as well settled as any legal proposition can be." Opinion of the Justices, 41 N.H. 550; United States v. 1,363 Bags of Merchandise, 2 Spr. 85, Fed. Cas. No. 15,964; United States v. Philadelphia & Reading R. R. Co., 123 U.S. 113, 8 S.Ct. 77, 31 L.Ed. 138. In State v. Scruggs, 115 N.C. 805, 20 S.E. 720, it is held that: "The jury provided by law for the trial of indictments is composed of 12 men; a less number is not a jury, and a trial by jury in a criminal action cannot be waived by the accused." In State v. Stewart, 89 N.C. 564, an indictment for assault and battery, Justice Ashe says: -- citing 1 Bish. Prim. Law, 759. In State v. Holt, 90 N.C. 750, 47 Am. Rep. 544, an indictment for cruelty to animals, it is held that a jury trial cannot be waived by the defendant in a criminal action.
The defendant may plead guilty, or nolo contendere, or autrefois convict, and of course the impaneling of a jury is unnecessary; but when he pleads not guilty in cases, such as this, where a trial by jury is guaranteed by the organic law, he must be tried by a jury of 12 men and he cannot waive it. State v. Moss, 47 N.C. 66; Cancemi v. People, 18 N.Y. 128. It would have been much safer for his honor to have followed the settled precedents of this court, and have discharged the jury and impaneled another.
Innovations in settled methods of procedure are generally unwise, especially in criminal cases. In this connection it is well to remember the words of Chief Justice Merrimon: State v. Holt, supra.
New trial.
The Constitution, art. 1, § 13, provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court." Section 19 of the same article provides: "In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable." The right to trial by jury is beyond controversy, both in civil and criminal cases.
There can be no controversy either that the jury here referred to means "12 men," not because there is any reference to trial by jury in Magna Carta, or that it would have any authority if there was, but because our Constitution, made by our people for our own government, provides for a jury and the word ""jury" must be given the signification which it had at that time, which was a jury of "12 men." In some states a jury now may consist of less than 12, and in several a unanimous verdict is not required. The Supreme Court of the United States in passing upon this matter has held, in several cases, that the number that should compose a jury, and whether unanimity should be required or not, is entirely a matter for the people of each state, and that the fourteenth amendment does not impose any restrictions upon the states in this regard. The requirement in the fifth and sixth amendments to the federal Constitution of a jury trial is held also to apply only to the federal courts. This matter has been fully discussed and has been...
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