State v. Smarr

• Decision Date: 21 December 1897
• Citation: 121 N.C. 669,28 S.E. 549
• Court: North Carolina Supreme Court
• Parties: STATE v. SMARR.

28 S.E. 549

121 N.C. 669

STATE

v.SMARR.

Supreme Court of North Carolina.

Dec. 21, 1897.

Jury—Special Venire — Qualifications — Criminal Law— Appeal—Revision of Jury List-Change of Venue — Burglary — Evidence-Competency.

1. Under Code, § 1728, disqualifying a juror who has a "suit pending and at issue, " a juror is not disqualified where he has a suit pending, but not at issue.

2. An objection that the jury list was not revised when required by statute, where it does not appear that the accused was prejudiced, will not be considered.

3. The act of the trial judge in refusing a change of venue is not reviewable, though defendant, accused of burglary, made affidavits therefor containing strong averments, and no counter affidavits were filed, as Code, §§ 196, 197 (Act 1879, c. 45), forbids a removal, unless the trial judge shall be "satisfied" that justice demands it.

4. It is not competent for defendant to show that other burglaries were committed about the same time as the one he is charged with.

5. Accused cannot object that a special venire authorized by Code, § 1738, was not drawn from the jury box under Code, § 1739, providing for such drawing at the judge's discretion.

Appeal from superior court, Cleveland county; Hoke, Judge.

William Smarr was convicted of burglary, and he appeals. Affirmed.

E. Y. Webb, for appellant.

The Attorney General, for the State.

CLARK, J. The motion to quash, because one of the grand jurors had a suit "pending" in said court, was properly disallowed. The disqualification applies only to a juror who has a "suit pending and at issue" when the juror is drawn. Code, § 1728. The object is to disqualify one who has a suit which is triable at the term for which he is drawn to serve as a juror. If the action should come to an issue at such term, it would not stand for trial "till the term of the court next ensuing such joinder of issue." Id. § 400. But here the juror's suit was not at issue when drawn, nor did it even come to issue at the term at which he served, for he did not file his answer at that term, but was granted 60 days' leave to file it. Hodge? v. Lassiter, 96 N. C. 351, 2 S. E. 923.

Nor was there any force in the objection that the jury list was not revised (owing to delay in receiving the Laws of 1897) on the first Monday in June, but at the meeting of thecommissioners, on the first Monday in July or August. It does not appear that the prisoner was in any wise prejudiced thereby, and such requirements as to the manner or time of drawing jurors have always been held directory, in the absence of proof of bad faith or corruption on the part of the officers charged with that duty. State v. Stanton, 118 N. C. 1182, 24 S. |E. 536; State v. Durham Fertilizer Co., 111 N. C. 658, 16 S. E. 231; State v. Wilcox, 104 N. C. 847, 10 S. E. 453; State v. Hensley, 94 N. C. 1021; State v. Griffice, 74 N. C. 316; State v. Haywood, 73 N. C. 437.

The prisoner filed an affidavit for removal. The court refused to remove, and the prisoner excepted. The superior court of the county in which the offense was committed had the sole jurisdiction to try the offense unless the cause is removed therefrom, and the authority to order such removal is granted and restricted by Code, §§ 196, 197. Section 196 provides that in all civil and criminal actions, upon affidavits, on behalf of either party, that justice cannot be obtained in the county in which the action is pending, "the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial, if he shall be satisfied that a fair trial cannot be had in said county." Section 197 says that it shall be competent for the other side to offer counter affidavits, and "the judge shall not order the removal of any such action unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it." It does not appear whether the state offered any counter affidavits. The solicitor may not have deemed it necessary. In a matter of this kind the prisoner naturally states his ground for removal in as strong a light as possible, but the judge is not bound by the recitals in his affidavit, though no counter affidavit is filed, but is to make "thorough examination of the evidence." We do not know whether he heard oral testimony or what knowledge he had that prevented him from believing the averment that a fair trial could not be had in that county. He knew the truth as to the surroundings and circumstances far better than it can be known by us from an ex parte affidavit, and the statute forbade him to remove unless "he was satisfied that the ends of justice required it." As he was not, there is no authority given to the appellate court to hold that he was. It has always been held that the granting or refusing to grant an order of removal is a discretion which the lawmaking power has vested in the trial judge, and that his action is not reviewable. State v. Hall, 73 N. C. 134; State v. Hill, 72 N. C. 345; State v. Hildreth, 31 N. C. 429; State v. Duncan, 28 N. C. 98. These were the uniform decisions, even under the former statute, which was "that the judge may decide upon such facts whether the belief is well grounded." Since then the present statute (Code, §§ 196, 197; Acts 1879, c. 45) has made the discretion reposed in the trial judge still more explicit by forbidding him to remove "unless he shall be satisfied" that the ends of justice demand it Under the former less explicit statute it was said, obiter, In State v. Hall, supra, that if the presiding judge should refuse on account of a supposed want of power, it might be...