State v. Shule

• Decision Date: 31 August 1849
• Citation: 10 Ired. 153,32 N.C. 153
• Court: North Carolina Supreme Court
• Parties: THE STATE v. ANTHONY J. SHULE.

10 Ired. 153

32 N.C. 153

THE STATE

v.ANTHONY J. SHULE.

Supreme Court of North Carolina.

August Term, 1849.

Upon the trial of an indictment for an affray, after the jury had returned into Court and intimated an intention to acquit one of the defendants, but had not announced their verdict, the Court told them, that, if they believed the evidence, both of the defendants were guilty; whereupon the Solicitor for the State directed the Clerk to enter a verdict of guilty as to both, which was done, and the jury, being asked, if that was their verdict, made no direct assent but by a nod from each of them; Held, that this proceeding was so irregular and contrary to the established mode, that the judgment should be set aside.

Appeal from the Superior Court of Law of Lincoln County, at the Fall Term 1848, his Honor Judge MOORE presiding.

This was an indictment for an affray. After the Court had charged the jury, they retired, and, remaining out for some considerable time, at the request of the Solicitor, they were sent for by the Court. After the jury returned, the Court charged them, that, although Jones (the other defendant) had first commenced a battery upon Shule, yet that, if the jury believed the evidence, the defendant Shule was also guilty. After this charge had been given by the Court, one of the jurors remarked, that they had agreed to convict Jones, and were about to acquit Shule, which remark was not contradicted nor assented to by any of the other jurors. Whereupon the Court gave them a further charge, and, at the conclusion of it, remarked, that the jury could retire, if they thought proper to do so. The jury remained together a few moments in the Court room, apparently in consultation. The Solicitor for the State directed the clerk to enter a verdict of guilty, as to both defendants. When the clerk had written out the verdict, the jury were asked to attend to the verdict, which was about to be read by the Clerk. The Clerk then read the verdict, in the hearing of the jury; and the jurors were then requested by the Solicitor to make it known, if any of them disagreed to the verdict, which had been recorded by the Clerk. No juror expressed his dissent, but, on the contrary, by a nod, which appeared to be made by each juror, expressed their unanimous assent. From the judgment upon this verdict the defendants appealed.

Attorney General, for the State .

No counsel for the defendants .

PEARSON, J.

We think there was error in the mode of conducting the trial. There must be a venire de novo. There was a departure from the established mode of proceeding, and the wisest policy is, to check innovation at once; particularly, as, in this case, it concerns the “trial by jury,” which the “bill of rights” declares “ought to remain sacred and inviolable.” The error complained of is, that before the jury had announced their verdict, and, in fact, after they had intimated an intention to acquit the defendant Shule, the Court allowed the Clerk to...