State v. Upton

• Decision Date: 22 December 1915
• Docket Number: 581.
• Parties: STATE v. UPTON.
• Court: North Carolina Supreme Court

87 S.E. 328

170 N.C. 769

STATE v. UPTON.

No. 581.

Supreme Court of North Carolina

December 22, 1915

Appeal from Superior Court, Swain County; Cline, Judge.

Jesse Upton was convicted of murder, and he appeals. No error.

When an incompetent juror as a nonresident of the county is permitted by defendant to try his case without objection, it does not vitiate the verdict.

Bryson & Black and A. S. Patterson, all of Bryson City, for appellant.

Attorney General and T. H. Calvert, Asst. Atty. Gen., and Martin Rollins & Wright, of Asheville, for the State.

CLARK C.J.

The defendant was indicted for murder in the first degree; but when the case was called, and before any jurors were selected, the solicitor announced that he would not ask for a verdict of murder in the first degree, and an entry was made in the record to that effect. It follows that the trial was not for a capital felony. State v. Hunt, 128 N.C 584, 38 S.E. 473; State v. Caldwell, 129 N.C. 682 40 S.E. 85.

When the case was called for trial, both sides announced themselves in readiness. A jury was selected, sworn, and impaneled. After the Solicitor had read the indictment, the attention of the court was called to the fact that one of the jurors was not a citizen and resident of Swain county. This was not previously known to the counsel on either side, nor to the court. Counsel on both sides expressed the opinion to the court that, if the trial were continued with such juror in the box, the irregularity would vitiate the result. Thereupon the court ordered a mistrial and discharged the juror and the entire jury, and began the trial of the case anew; each one of the jurors being passed upon by the state and defendant. The defendant made no exception when the juror was withdrawn and made his exception only when the new jury was impaneled. The court did not use the words "mistrial ordered," but his withdrawal and discharge of the juror and the discharge of the other jurors and beginning the trial over again was an order for a mistrial. The trial was for a felony, not capital, and it was discretionary with the judge to order a mistrial. State v. Collins, 115 N.C. 716, 20 S.E. 452, citing State v. Johnson, 75 N.C. 123, 22 Am. Rep. 666, where Pearson, C.J., said that if, on the trial for a capital offense, the judge directs a mistrial he is required to find the facts, and his action is subject to review on appeal, but that, on trial for a felony, not capital, or for a lesser offense, the discretion of the presiding judge in making a mistrial is not subject to review, for he has the discretion to do so whenever he believes it proper in furtherance of justice, citing State v. Weaver, 35 N.C. 203; Brady v. Beason, 28 N.C. 425.

Even if this had been a trial for capital felony, it would not have been error for the court to have made a mistrial "when necessary to attain the ends of justice." State v. Guthrie, 145 N.C. 495, 59 S.E. 652; State v. Tyson, 138 N.C. 627, 50 S.E. 456, which is cited in State v. Dry, 152 N.C. 813, 67 S.E. 1000. In the last case, a prisoner on trial for capital felony absented himself from court. On discovery of this, the judge asked his counsel if he intended to except because of the prisoner's absence, and he said that he did. The judge then ordered a mistrial and refused a motion for the discharge of the prisoners, there being two on trial. This court said:

"In reply to the inquiry of the court, the counsel of the prisoners, who were on trial together for a homicide committed jointly, frankly admitted that they would insist upon the nullity of the whole proceeding because of the absence of one of them from the courtroom during part of the time the jury was being selected."

The court then said:

"If their contention was correct 'that the further trial would be a nullity,' and the prisoners cannot be heard to the contrary, the prisoners were not in jeopardy, and the mistrial was properly ordered. But if the temporary absence of the prisoner, by his own volition, cannot * * * have had that effect, still the court might well 'in the interests of justice,' refuse to go on with an important trial with such an objection pending, whose effect would be to place the state at a great disadvantage."

In that case, the court also said that in the United States courts and in most of the other states, a mistrial in a capital felony rests in the sound discretion of the trial judge, as it does in all other cases with us, and that, while we have not gone that far, we have modified the stringent rules heretofore prevailing, and that a mistrial in a capital felony can now be made when it is...