State v. Tart

• Decision Date: 12 November 1930
• Docket Number: 91.
• Citation: 155 S.E. 609,199 N.C. 699
• Parties: STATE v. TART.
• Court: North Carolina Supreme Court

155 S.E. 609

199 N.C. 699

STATE v. TART.

No. 91.

Supreme Court of North Carolina

November 12, 1930

Appeal from Superior Court, Harnett County; Lyon, Emergency Judge.

Paul Tart was convicted of carnal knowledge of a girl under sixteen years of age, and he appeals.

Cause remanded.

Defendant was entitled to have court find as fact whether defendant or counsel was misled and whether he would have challenged juror had he known relationship to prosecutrix.

A juror in a criminal case is disqualified when related by consanguinity or affinity to the prosecutor within the ninth degree ascertained according to the rules of the civil law.

The defendant was indicted for carnal knowledge of a girl under sixteen years of age.

The prosecuting witness testified that the defendant had intercourse with her the first time he came to see her and within a few minutes after he arrived. Six witnesses testified that the character of the prosecuting witness was good. Four young men testified that they had had intercourse with her, and and four others testified that they had seen others do so, and eleven witnesses testified that her character was bad.

The jury returned a verdict of guilty, and upon the verdict the defendant was sentenced to serve not less than three nor more than five years in the penitentiary.

The record shows the following entry: "During said term it was discovered by the defendant that one of the jurors was related to the prosecuting witness within the degree prohibited, and defendant made motion to set the verdict aside on this ground, which motion was continued to be heard March 31, 1930, at which time, upon investigation, the court found as follows: 1. That one of the jurors, to-wit, W. H Patterson, who was sworn and empanelled to try the above case was related to the prosecutrix within the seventh degree. 2. That the following question was asked the jury by the defense counsel: 'If there is any member of the jury related to the prosecutrix by blood or marriage, please let that fact be known and excuse himself' --to which juror Patterson made no reply. 3. That the said W. H. Patterson says he did not recognize the relationship at the time he was chosen as juror, and that is why he did not disclose this fact, but admits he discovered the same before any evidence was introduced. 4. That the said W. H. Patterson, after discovering the relationship, and before the evidence was introduced, wanted to disclose this fact to the Court, but upon advice not to do so, he continued to serve upon the jury, knowing his relationship to the prosecutrix. 5. The court further finds that the defendant was not prejudiced by said juror serving."

From judgment rendered, the defendant appealed.

Young & Young, of Dunn, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

BROGDEN J.

The sole question presented by the record is whether the judge should have set aside the verdict by reason of the fact that one of the jurors was related to the prosecuting witness within the seventh degree.

It has been generally held that the finding of "fact by the presiding judge, who is far better acquainted with the surroundings than we can possibly be, is conclusive, and we cannot look into the affidavits, whether one or more, to reverse such finding." State v. Crane, 110 N.C 530, 15 S.E. 231; Radford v. Young, 194 N.C. 747, 140 S.E. 806; State v. Adkins, 194 N.C. 749, 140 S.E. 806.

Notwithstanding, it is also true that the law has always regarded relationship by blood or marriage within the ninth degree as a disqualification for jury service. State v. Potts, 100 N.C. 457, 6 S.E. 657; McIntosh on North Carolina Practice and Procedure, § 655(6).

Indeed the prevailing idea of law for more than a century has been that a person accused of crime is...