State v. Stevens, 509

• Decision Date: 02 May 1956
• Docket Number: No. 509,509
• Citation: 92 S.E.2d 409,244 N.C. 40
• Court: North Carolina Supreme Court
• Parties: STATE, v. Bruce Phillip STEVENS.

Page 409

92 S.E.2d 409

244 N.C. 40

STATE, v. Bruce Phillip STEVENS.

No. 509

Supreme Court of North Carolina.

May 2, 1956

Pittman & Staton, by J. C. Pittman, Sanford, for defendant, appellant.

William B. Rodman, Jr., Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The defendant's motion to quash the indictment made before plea, and the motion in arrest of judgment made after verdict, challenge the validity of the indictment upon the ground that it was returned by an illegally constituted grand jury. The defendant contends the court committed error (1) in discharging grand juror Kelly for an insufficient reason, that is, 'He had been tried and convicted for driving drunk and not fit to serve on the grand jury,' and (2) ten grand jurors were selected at the October, 1955 Term, whereas the law applicable to Lee County provided for the selection of only nine members.

While the defendant had no right to keep Kelly on the grand jury and cannot complain of his removal, he did have the right to object to the selection of his successor, either on the ground that he did not possess the qualifications or that the manner of his selection was illegal. In the case of State v. Peacock, 220 N.C. 63, 16 S.E.2d 452, 453, this Court, speaking through Stacy, C. J., said: 'The right of a defendant, or party litigant, in respect of the jury, grand or petit, is to challenge, or to reject, and not to select jurors. C.S. § 2335. State v. Levy, supra [187 N.C. 581, 122 S.E. 386].' The defendant does not contend the 10th juror lacked the necessary qualifications. The objection is upon the ground that 10 men were selected instead of the nine provided for in the Local Law applicable to Lee County. The Act provides the judge presiding at any criminal or civil term of superior court, may, at any time, discharge the grand jury from further service, in which event he may cause a new grand jury to be drawn for the unexpired term. The authority to discharge the whole grand jury would seem to include the right (if that right did not already exist) to discharge any one or more of its members. 'The power of the court to discharge or excuse grand jurors on the original panel and fill vacancies created thereby are inherent and existed at common law in the absence of express statutory authority. * * * Generally, discharging or excusing some of the grand jurors on the original panel and supplying their places will not invalidate their action so long as the newly constituted panel is within the statutory limit.' 24 Am.Jur. 848. See State ex rel. Dunn v. Noyes, 87 Wis. 340, 58 N.W. 386, 27 L.R.A. 780; People of State of Illinois v. Gray, 261 Ill. 140, 103 N.E. 552, 49 L.R.A., N.S., 1215.

'When the power is given a court to excuse one called to serve as a grand juror, * * * authority to fill the vacancy thus occasioned with another possessing the requisite qualifications is also conferred by necessary implication.' 38 C.J.S., Grand Juries, § 22, p. 1013. See also, State v. Perry, 122 N.C. 1018, 29 S.E. 384; State v. Barber, 113 N.C. 711, 18 S.E. 515.

Statutory provisions which relate to the number and qualification of grand jurors or which are designed to secure impartiality and freedom from unfair influences are ordinarily deemed to be mandatory; those which prescribe mere details as to the manner of selecting or drawing them are usually regarded as directory only. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114.

We conclude, therefore, that the presiding judge, in his discretion, had the power (1) to discharge Kelly from the grand jury for cause, and (2) to fill the vacancy thus created by the drawing of another duly qualified grand juror. Of the grand jurors drawn, one was to take the place of Kelly and the other nine to take the places of those whose terms expired by reason of having already served one year. The burden was on the defendant to show the disqualification. State v. Perry, supra.

The defendant contends the court abused its discretion in refusing to continue the case on account of the absence of witnesses. However, the defendant made no showing as to his efforts to have these witnesses in court and no showing as to what testimony material to the defense they could give if present. While the indictment was returned at the term at which the trial was held, the offense was alleged to have been committed one month and two days prior to the beginning of the term. The motion for continuance was made upon the ground of absence of witnesses and not for lack of time in which to prepare the defense. The record does not show abuse of discretion in denying the motion for continuance. State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Creech, 229 N.C. 662, 51 S.E.2d 348; State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Whitfield, 206 N.C. 696, 175 S.E. 93.

While defendant's counsel, out of abundance of precaution, took numerous exceptions to the admission and exclusion of evidence, careful examination of the record fails to show prejudicial error. The questions asked by the court appear to be of a clarifying nature. Andrews v. Andrews, N.C., 92 S.E.2d 180. The evidence was ample to take the case to the jury and to sustain the verdict. To prevail on appeal it must be made to appear that appellant's rights have been prejudiced. State v. Creech, supra; State v. Beal, 199 N.C. 278, 154 S.E. 604.

The charge of the court covered 36 pages of the record. All except 15 lines have been made the subject of the 72 exceptions...