State v. Washington
| Decision Date | 31 October 1883 |
| Citation | 45 Am.Rep. 700,89 N.C. 535 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. GEORGE WASHINGTON. |
OPINION TEXT STARTS HERE
MOTION for certiorari heard at October Term, 1883, of THE SUPREME COURT.
Attorney-General, for the State .
Mr. D. G. Fowle, for the prisoner .
The petition for the writ of certiorari to bring up the record of proceedings in the superior court of Craven, with a view to the discharge of the prisoner, contains the following statement of facts:
The prisoner was put on trial under an indictment for murder, and a jury sworn and impanelled, when a short recess was taken. Upon the reassembling of the court, and before any evidence in support of the charge had been offered, the solicitor moved for the withdrawal of a juror and a mistrial, for the alleged reason that two jurors, whose names were mentioned, had fraudulently procured their admission into the panel on a false oath of indifferency, for the purpose of securing the acquittal of the accused. The court heard testimony upon the matter, found as a fact and declared the charge against the jurors to be true, and, as a conclusion of law, that the jury had been “impanelled by the fraud of the prisoner, or of some one on his behalf, with a view to the prisoner's acquittal. A juror was thereupon withdrawn, and a mistrial ordered. The prisoner did not consent to this action, but protested against it, avowing his disbelief of the charge, and, if true, any participation in it.
The cause was then, on application of the state, removed to Pamlico county for trial: and the sole inquiry for us to make is as to the legal effect of the discharge of the jury, under the circumstances, upon the rights of the accused, and whether the court shall interpose at this stage of the prosecution and discharge the prisoner without trial.
The defence, if in law effectual, may be made available by special plea on the trial of the indictment, without depriving the prisoner of his right to be tried on the plea of not guilty, if the first shall be held insufficient; and all the rulings upon conviction may be reviewed on the appeal. State v. Swepson, 79 N. C., 632; State v. Swepson, 81 N. C., 571; State v. Pollard, 83 N. C., 597; State v. Respass, 85 N. C., 534.
No injury can, therefore, result to the prisoner from our refusal to intervene and arrest the prosecution; while, if the averments made in the application of his innocence be true, and the jury so find, an erroneous ruling as to the legal consequences of the disbanding of the jury will be rendered harmless.
It does not appear, moreover, though the order for a mistrial was strenuously resisted, that any motion was then made for the prisoner's discharge, and denied. Still, if his claim to be exempt from exposure to another trial, because it would be putting him in jeopardy a second time upon the same bill or for the same offence, be valid, he is entitled to summary relief, and should not be compelled to undergo another useless and illegal trial, with the long imprisonment and other inconveniences preceding it.
We are not prepared to concede that the course pursued by the court was in excess of the authority conferred by law to conduct the trial, so as to secure a fair and just verdict, as due alike to the public and to the accused. It would be a great defect in the administration of distributive justice if, upon discovering an attempted fraud in the organization of the jury to accomplish a conviction or acquittal of the accused, at the very inception of the trial, the presiding judge is powerless to correct the wrong and must proceed and allow the fraud to be consummated and crime to go unpunished. This would be, in the forcible language of Mr. Justice ASHE, to make “the trial by jury become a farce and the administration of justice a mere mockery.”...
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