State v. Shaw

• Decision Date: 30 June 1843
• Citation: 25 N.C. 532,3 Ired. 532
• Parties: STATE v. ELLIOTT SHAW.
• Court: North Carolina Supreme Court

3 Ired. 532

25 N.C. 532

STATE

v.ELLIOTT SHAW.

Supreme Court of North Carolina.

June Term, 1843.

Where a juror was challenged for cause, and it appeared that his wife was cousin to the prisoner's former wife, who was now dead, leaving no children, Held that this was no cause of challenge, the affinity having ceased with her death.

The improper allowing or disallowing of a challenge is a ground for a venire de novo, not as a matter of discretion in the court, but of right to the party; and is therefore a good foundation for a writ of error.

The withdrawal of a juror from the pannel by the court, without sufficient cause, is in law, however excusable the error, an arbitrary withdrawal, for which the court has no authority.

The jurors of the original venire constitute a distinct panel. When that panel is perused--or gone through with--without forming a jury, any individual member thereof, who, upon the challenge of the State, has been set aside, to see whether a jury might not be formed from the panel without him, must be brought forward and challenged or taken, before the special venire or tales jurors can be resorted to.

The cases of the State v Benton, 2 Dev. & Bat. 196; and State v Arthur, 2 Dev. 217, cited and approved.

Appeal from the Superior Court of Law of Halifax county, at Spring Term, 1843, his Honor Judge MANLY presiding.

The defendant was indicted for the murder of one Randolph Powell, and pleaded Not Guilty. In forming a jury to try the issue, a juror from the original panel was drawn, and, being brought to the book to be sworn, was challenged by the Attorney General in behalf of the State, and the cause of challenge alleged was, first, that the said juror had formed and delivered his opinion, that the prisoner was not guilty of the charge in the indictment specified; and secondly, that he was connected by affinity with the prisoner. And issue being taken by the prisoner upon the matter alleged in support of the challenge, the Attorney General examined the said juror to prove the same, who deposed that he had not formed and delivered an opinion that the prisoner was not guilty of the said charge, and that a former wife of the prisoner, now deceased, was in her lifetime a cousin of the said juror's wife. His HONOR declared his opinion in favor of the challenge taken, allowed the same and set aside the juror, and to this opinion, the prisoner by his counsel excepted.

And another juror, from the special venire, being in like manner drawn, was challenged by the Attorney General in behalf of the State, and the cause of challenge alleged was, that the said juror had formed and delivered his opinion that the prisoner was not guilty of the charge in the indictment specified; and issue being taken thereon, the Attorney General examined the juror to prove the same, who, being asked whether he had formed and delivered an opinion, said he believed he had--being asked to explain himself as to the nature of the opinion, he said that the opinion referred to had been formed from a rumor or report of the transaction heard by him at the time, and upon supposition that the same was true, but he had not formed any opinion whether the rumor or report was true or not--and being asked whether he had any reason to disbelieve the said report, he said he had not. His HONOR sustained the said challenge and set aside the said juror, and the prisoner by his counsel excepted.

A jury being impannelled, found the prisoner not guilty of the murder charged, but guilty of manslaughter.

After the rendition of this verdict, a motion being made on behalf of the prisoner for a venire de novo, on the ground of error in the matters aforesaid, his HONOR declared, that as the jury was completed without exhausting the prisoner's peremptory challenges--and as the right of challenge was a right to reject and not a right to choose, and as, therefore, whether the challenges aforesaid were rightly maintained or not, the whole jury was accepted and taken by the free consent of the prisoner, there was no ground either for a venire de novo or a new trial, and therefore denied the motion.

Judgment having been pronounced against the prisoner, he appealed to the Supreme Court.

Attorney General for the State .

Badger for the prisoner .

GASTON, J.

Upon the trial of the prisoner, a juror of the original panel was challenged by the State, because that he was connected by affinity with the prisoner, and upon its being shewn that the deceased wife of the prisoner was in her life time a cousin of the wife of the juror, the court allowed the challenge, the prisoner excepted thereto, and his exception was recorded. It does not appear, whether, at the time of the trial, there was or was not issue living of the prisoner by his deceased wife, and, as it is incumbent on him who challenges to make out his cause of challenge, we must understand that there was not such issue.--On examining the authorities we find the law to be, that in such case the affinity ceased with the death of the wife.--There was, therefore, error in the part of the court in allowing this challenge. Co. Lit....