State v. Savery
| Decision Date | 01 April 1900 |
| Parties | STATE v. SAVERY. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Forsyth county; Robinson, Judge.
A Savery was indicted, but discharged on a verdict of not guilty entered by direction of the court, and the state appeals. Appeal dismissed.
Glenn & Manly and J. M. Terrell, Atty. Gen., for the State.
Jones & Patterson, for appellee.
This is a criminal action brought here on the appeal of the state from a judgment discharging the defendant after a general verdict of not guilty. The material facts are as follows: The cause came on to be heard before the superior court on a warrant issued by the mayor of the city of Winston against the defendant. There was no defect appearing on the face of the warrant, though no affidavit was attached. The defendant pleaded, "Not guilty," and the jury was impaneled. The state introduced a witness who swore that the warrant was issued without any affidavit, he being the witness referred to in the warrant as having made the affidavit. Upon its appearing that no affidavit was made, defendant contended that he was entitled to a verdict of not guilty. The state first contended that, the warrant being regular, the absence of an affidavit made no difference, and that the most the court could do, in case it refused to hear the cause, was to withdraw a juror and dismiss the warrant. The court, in exercise of its discretion, refused to withdraw a juror or dismiss the action, and directed the clerk to enter a verdict of not guilty, which was done, and the defendant discharged. Upon the state of fact, the state and the city of Winston moved the court to strike out the verdict of not guilty, as the defendant had never been in jeopardy, and to reinstate the case for trial, or, at most, to treat the entry of not guilty as a dismissal of the action, to the end that the state might proceed as it thought best. The court denied the motion, and the state and the city of Winston appeal.
No motion was made to quash. On the contrary, the defendant pleaded to the indictment. The state insisted that the most the court could do was to withdraw a juror. It does not appear that the state made any such motion, but, on the contrary, it does appear that the state insisted that the case should be heard on its merits. No one asked that the indictment be quashed, and no one moved that a juror be withdrawn. The court below announced that, "in the exercise of its discretion, it refused to withdraw a juror or dismiss the action, but directed the clerk to enter a verdict of not guilty, which was done, and the defendant discharged." We are thus brought face to face with a general verdict of not guilty, which we are asked to set aside on the appeal of the state. Look at it as we may, there it stands, and we can proceed no further unless we set it aside. We may reverse as many supposed judgments as we please, quashing the indictment, but that of itself will not do away with the verdict. We cannot reverse the verdict, and hence, if we entertain the appeal, we are forced to establish for the first time in this state the dangerous precedent of granting the state a new trial in a criminal action. We borrow the words of an eminent lawyer, and say that in our opinion such action would be "not simply error, but a misarrangement of the whole idea of jurisprudence." Where is there any element of quashing? His honor did not quash, and did not intend to quash, the indictment. We do not understand the state as maintaining that that would have been the proper action. At best, it seems to us to say that his honor should have permitted the case to proceed, but that, if he was determined to end it erroneously, he should have committed the error of quashing the bill, because then we could have reversed him on appeal. It is true, his honor may have committed error, but would that justify us in exercising a quasi equitable jurisdiction in criminal matters? But it is urged that, unless we adopt some such construction, the defendant may go unwhipped of justice. How does that concern us at present? What right have we to find him guilty, or to assume his guilt, for the purpose of invoking a strained construction upon a pure question of law? We are well answered in the case of In re Spier, 12 N.C. 491 493, where this court says: The opinion of the court, delivered by Judge Hall, and the concurring opinion of Chief Justice Taylor, are both exceedingly interesting and instructive. It should be noted that this case does not decide that the doctrine "once in jeopardy" applies only to capital felonies, although that may be inferred from its reasoning, if the phrase is taken in its strictest sense. But there is certainly not the slightest intimation that a general verdict of not guilty can ever be set aside, and that is the question now before us. That opinion quotes Lord Coke as saying that "the life of a man shall not be twice put in jeopardy upon the same charge, for a capital offense"; but it also quotes Lord Coke as laying down the rule in still broader terms, and so as to render the discharge of the jury in treason, felony, or larceny illegal, even with the consent of the prisoner. 3 Minor, Inst. 110. We do not understand the distinction between felony and larceny, but so great a judge must have had something in his mind. The doctrine of "once in jeopardy" goes far beyond that of former acquittal, and applies where the jury have never rendered any verdict. Thus, it is held that, where a jury has once been impaneled in a capital case, they cannot be discharged before verdict, except for causes beyond human control. A conscientious inability to agree after every reasonable effort, is now deemed a cause beyond control, even in capital cases, but it should clearly appear that there is no reasonable possibility of agreement.
Let us briefly review the history of appeals by the state, as shown in our Reports. The cases of State v. McLelland, 1 N. C. 569 (*523), in the superior court, and State v. Hadcock, 3 N. C. 348 (*162), decided by the old court of conference, recognize the right of the state to appeal from the county court to the superior court on a verdict of acquittal; the court, however, in the latter case, doubting the principle. In fact, the opinion distinctly says that, if it were res integer, their opinion would be to the contrary. These cases were overruled by State v. Jones, 5 N.
C. 257 and we can find no subsequent case in our Reports where the state has ever claimed the right of appeal from a general verdict of acquittal. In the last-named case the head-note says, "The state is not entitled to an appeal in a criminal prosecution," while the case is briefly disposed of by a per curiam opinion, as follows: In State v. Taylor, 8 N. C. 462, this court says: "It would be to no purpose for this court to decide whether the paper writings offered in evidence were properly rejected by the circuit judge or not; for, upon the supposition that they were not, we could not grant a new trial after the acquittal of the defendant." This case, so clearly enunciating the principle, and so repeatedly affirmed, has apparently never been questioned. In State v. Martin, 10 N.C. 381, the entire case is as follows: This example appears to have been faithfully followed for 48 years, as the state does not appear even to have attempted an appeal until 1869, in State v. Credle, 63 N.C. 506. Taylor's Case was promptly and emphatically reaffirmed, whereupon the state again subsided. In 1872 the state again tried it, but with no better result. State v. Phillips, 66 N.C. 646; State v. Freeman, Id. 647; State v. West, 71 N.C. 263; State v. Armstrong. 72 N.C. 193; State v. Lane, 78 N.C. 547; State v. Swepson, 82 N.C. 541; State v. Moore, 84 N.C. 724; State v. Tyler, 85 N.C. 569, 572; State v. Powell, 86 N.C. 640; State v. Railroad Co., 89 N.C. 584; State v. Ostwalt, 118 N.C. 1208, 24 S.E. 660; State v. Ballard, 122 N.C. 1024, 29 S.E. 899; State v. Hinson, 123 N.C. 755, 31 S.E. 854, 32 L. R. A. 396; State v. Davidson, 124 N.C. 839, 32 S.E. 957; State v. Southern Ry. Co. (two cases; at this term) 35 S.E. 620. In this case the court says: In the celebrated case of State v. Swepson, 79...
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