State v. Sharp

• Decision Date: 16 February 1892
• Citation: 110 N.C. 604,14 S.E. 504
• Court: North Carolina Supreme Court
• Parties: State. v. Sharp et al.

14 S.E. 504

110 N.C. 604

State.

v.Sharp et al.

Supreme Court of North Carolina.

Feb. 16, 1892.

Qualifications of Grand Juror—Quashing Indictment.

The fact that a member of the grand jury, who "actively assisted in fiuding a true bill" for larceny, was a son of the prosecutor, from whom the property was alleged to have been stolen, is no ground for quashing the indictment.

Appeal from superior court, Haywood county; Georoe H. Brown, Judge.

Sharp and Babb were indicted for larceny. From a judgment quashing the indictment and sustaining a plea in abatement, the state appeals. Reversed.

The other facts fully appear in the following statement by Avery, J.:

Indictment for the larceny of corn, the property of Nelson Howell, with a count for receiving, heard on demurrer to a plea in abatement, at spring term, 1891, of Haywood superior court, before Brown, J. The defendants filed a formal plea, in which they ask that the indictment be quashed, for that Kinney Howell, a member of the grand jury that found the indictment, as they are informed, was a son of Nelson Howell, who is marked as prosecutor of said cause, and whose goods are charged in the bill to have been taken, and that the said Kinney Howell "actively engaged in finding said bill a true bill." The demurrer of the state to the plea in abatement was overruled, and the solicitor for the state appealed.

The Attorney General, for the State.

G. S. Ferguson, for the defendants.

Avery, J., (after stating the facts.) This is not a challenge to the array, but a motion to quash, made before arraignment by plea in abatement, and founded upon the idea that a particular grand juror was disqualified because he is a son of the prosecutor, and that his incompetency vitiated the action of the whole inquisitorial body which found the indictment. It is well settled in this state that a plea in abatement, filed before the defendant has demurred or pleaded to the indictment, and founded upon the fact that a single member of the grand jury who returned it into court was at the time disqualified by law to serve in that capacity, must be allowed as sufficient ground for a motion to quash, if admitted by demurrer or established by a verdict. State v. Seaborn, 4 Dev. 305; State v. Watson. 86 N. C. 624; State v. Baldwin, 80 N. C. 390; State v. Smith, Id. 410; State v. Hay wood, 73 N. C. 437; State v. Wilcox, 104 N. C. 847, 10 S. E. Rep. 453; State v. Gardner, 104 N. C. 739, 10 S. E. Rep. 146. The general rule is that such a plea will not be sustained, if admitted to be true, unless it show a want of some positive qualification prescribed by law; that all other objections to the competency of a grand juror must be taken, if at all, by challenge, and will not he heard after the time for challenging is passed. Thomp. & M. Jur. § 533; Bish. Cim. Proc. § 739; People v. Jewett, 3 Wend. 314, 12Amer.& Eng. Enc. Law, 343a. It was held by the supreme court of Ohio in a well-considered opinion that the fact that a member of the grand jury which found an indictment for murder was a nephew of the person murdered was not sufficient to make a good plea in abatement to the indictment. State v. Easter, 30 Ohio St. 542; Koch v. State, 32 Ohio St. 353; Case of Tucker, 8 Mass. 286; U.S. v.Williams, 1 Dill. 485. This plea has not been regarded with favor by the courts because of the expense, delay, and danger of the escape of criminals that grow out of entertaining it. Thomp. & M., supra, §§ 535, 536, and the authorities referred to in notes; State v. Rickey, 10 N.J. Law, 83. It will appear by reference to authorities that are seemingly in conflict with our position that they depend upon the construction of some local statute, providing specially a mode of challenge. The Ohio decisions cited supra rested upon the principle that the court could not go beyond the disqualifications specified in their statute, and "say the grand juror must also be no kin to those injured by the accused. " The case of State v. Rocka-fellow, 6 N. J. Law, 340, has been cited as sustaining the opposite view, yet that was in fact a case where a grand juror was disqualified by statute, and the plea in abatement was sustained on that ground. The same court, however, afterwards, in State v. Rickey, supra, held that a plea in abatement on the ground that a grand juror who had acted in finding the indictment had previously expressed the opinion that the defendant was guilty, would not be sustained, because such objection could be heard only, if at all, as a ground of challenge. While it would not be error in a judge to sustain a challenge to the competency of a petit juror, who was a stockholder and holder of the notes of abank, in?n action brought to recover funds wrongfully taken from said bank by a defendant, a plea in abatement to an indictment for embezzling the same money, filed by the same defendant, on the ground that the stockholder was a member of the...