State v. Seaborn

• Decision Date: 31 December 1833
• Citation: 15 N.C. 305
• Court: North Carolina Supreme Court
• Parties: STATE v. BENJAMIN F. SEABORN.

15 N.C. 305

STATE

v.BENJAMIN F. SEABORN.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833.

1. A statement in the record that "on balloting, the following jurors are duly elected, sworn and charged to serve as grand jurors," etc., is a sufficient compliance with the provisions of Laws of 1779, c. 157.

2. In the superior courts of original criminal jurisdiction, every thing as to the method of proceeding is presumed and taken to be right, unless the contrary appears.

3. An irregularity in the mode of empaneling a grand jury, can only be taken advantage of by plea in abatement upon the arraignment, and the objection comes too late after verdict.

4. It is not necessary in an affidavit for removal of a cause, that the belief of the affiant should be stated; it is sufficient if it sets forth the facts on which he grounds his belief.

5. An order of removal "to C.. . .County," without saying the Superior Court of the county, is sufficient.

6. Upon a conviction of arson the convict is ousted of his clergy.

The prisoner was indicted for the crime of ARSON. The indictment contained six counts. The first count charged the arson to have been committed by "feloniously, willfully and maliciously," setting fire to the dwelling house of one Richard

Smith, in the city of Raleigh, and concluded at common law. The second count was like the first, except that it laid the dwelling house to be that of one John Hosea. The third count charged the prisoner, with "feloniously, voluntarily, willfully and maliciously" setting fire to the dwelling house of one Richard Smith, and concluded against the form of the statute. The fourth resembled the third except in laying the property of the dwelling house in John Hosea. The fifth was like the third and fourth, except in concluding against the form of the statutes; and the sixth differed from the fifth, only in laying it to be the dwelling house of John Hosea.

The indictment was found at WAKE Spring Term, 1833. In the sheriff's return of the venire, one of the persons summoned, was stated in the record to be named Joes Jones, and the clerk in making up the record, stated "on ballotting, the following persons are duly elected, sworn and charged to serve as grand jurors at this term, to-wit, Seth Jones, foreman," etc., and among the rest Joel Jones. The name of Joel Jones did not appear on the original venire, otherwise than as above.

The prisoner when put to the bar, offered the following affidavit for the removal of his cause:

"Benjamin Seaborn maketh oath that he is advised by his counsel, that a state of feeling exists in this county, so firmly seated as to his guilt, that a fair and impartial trial therein can be hardly expected."

Upon this affidavit, the cause was ordered to be removed "to the county of Cumberland, for trial, to be had in said court to be held for said county, on the second Monday after the fourth Monday in April," etc.

On the trial in Cumberland, the evidence for the State consisted in a great variety of circumstances, among which was the fact of a large amount of money being found upon the prisoner shortly after the fire, part of the money was identified by Smith as his, and it was proved that the same was in the house at 9 o'clock of the night of the burning. The prisoner had made divers statements as to his possession of the money and after his arrest he admitted that he had the money in his pocket when the house was burned, but said that he had received it from a negro Harry, the slave of Smith.

On this part of the case, his Honor, Judge Martin instructed the jury, that the degree of credit to be given to this declaration, was for their exclusive consideration, that they should attend to and weigh all the circumstances attending it: the situation of the prisoner, his previous statements, his apparent inducements, etc., and should decide what

impression was made upon them, as to its truth or probability; and upon the whole, if they were satisfied of his guilt beyond a reasonable doubt, they should convict him; if they entertained a reasonable doubt they should acquit.

The jury returned a verdict of guilty; a motion was made for a new trial, which being refused, the following reasons were offered in arrest of judgment: 1st. That the bill of indictment was not found by a grand jury properly constituted.

2dly. That the order for removal was irregular, not being founded on a sufficient affidavit.

3dly. That there was no order for the removal of the cause to Cumberland Superior Court.

4thly. That the indictment was not sufficient.

5thly. For insufficiency of the record.

His Honor arrested the judgment, whereupon Mr. Solicitor Troy appealed to this court.

RUFFIN, C. J. Upon the motion for a new trial, I agree with the Judge of the Superior Court, that there is no ground for it.

But I do not concur with him that the judgment ought to be arrested. As the consequences of this difference are so important to the prisoner, and the regular administration of the criminal law, I deem it respectful to the Judge of the Superior Court, and otherwise proper to express the reasons which govern me.

Of the several reasons in arrest, the first relates to the constitution of the grand jury. To that, two objections are made, both of which are supposed to arise on *Laws 1779, c. 6, which provides that the County Courts shall nominate jurors for the Superior Courts, of whom a list shall be given to the sheriffs, who shall summon the persons and return the lists, and "that the Superior Courts shall direct the namesof all the jurors so returned, to be written on scrolls of paper, which shall be put into a box and drawn out by a child under ten years of age, and the first eighteen drawn shall be a grand jury." The first objection is, that it must appear expressly in the record, that all this was done, and that it does not so appear in this case; in which the record, after setting out the list returned or the venire facias, as it is called in the case, proceeds thus: "On balloting, the following jurors are duly elected, sworn and charged to serve as grand jurors, etc."

Upon the construction of this statute, the remark must be obvious, that it is not, at least in all its parts, to be taken as literal, and absolutely mandatory. The first eighteen drawn are not positively to be a grand jury; for some of them may not have been freeholders when nominated, or may not then be so, and freeholders are required by the first section. It means, that the first eighteen drawn, found upon trial to be otherwise qualified shall constitute that body. When therefore eighteen persons are stated to be duly elected out of a larger number, and to be thus elected by ballot, it cannot be understood otherwise, than that the body consisted of those whose names were on the scrolls first drawn, and who were found to be thus qualified. This signification we find given to those words "elect" and "ballot" in the law cases. But this act itself in the very next section applies this term ballot to the selecting of a petit jury by drawing the scrolls.

But if the record cannot be considered as affirming these facts, it may yet be sufficient. It is not necessary it should be affirmative of every part of the form or mode of proceeding. In the Superior Courts of original criminal jurisdiction everything as to the method of proceeding is presumed and taken to be right, unless the contrary appear. To this S. v. Kimbrough, 13 N. C., 431, following that of S. v. Lewis, 10 N. C., 410, is an authority in point. The words of the Chief Justice are, "when such a Court has taken an indictment, it shall be intended that it was duly taken; that it was taken by the requisitenumber of good and lawful men, duly drawn, sworn, and charged—in other words, that everything was done correctly, as far as concerns manner and form." There the record stated, that "upon balloting the following persons are drawn to serve as grand jurors, viz.," etc., and that they returned the indictment; but it did not state any particulars of the balloting, nor that the jurors were sworn or acted on oath, otherwise than as to be inferred from the indictment itself. The conviction was sustained, and the prisoner executed. A single reflection will satisfy us, that this has always been acted on as law. It is the uniform tenor of all the records in reference to this point. I have never seen one, nor I presume has any other person, in which the writing of the scrolls, putting them in a box and drawing them out by a child, to the number of eighteen, were either in all or any of these particulars specifically stated, or otherwise set forth than in general terms similar to those here used.

I conceive therefore, that there is nothing in this objection. Nor would there be, I think, were the proceedings that of any

Court; because it comes too late, for the reasons more particularly applicable to the next point.

The second objection to the grand jury is, that in the record one Joel Jones is named as one of the grand jurors sworn, while the list returned contained no such person, but one of the name of Joes Jones. This differs from the former objection in this. That here the facts which it is alleged constitute the error do appear in the record; whereas the first error was supposed to consist in the silence of the record upon certain facts. It is insisted that the grand jury must be composed only of those summoned, and that, if one be empaneled on it by a different name from all those summoned, he must be taken to be a different person; and the bill is not well found.

This objection if founded in fact and taken in due season in the Superior Court would, in my opinion, have been unanswerable; and had it then been overruled, it would have been error. But this I am saying as a mere dictum; for admitting the exception to have been once sufficient, the questionremains whether the case was open to it when it was actually taken, which is the point of the present decision.

I do not find that it...