State v. Wiseman
| Decision Date | 31 January 1873 |
| Citation | 68 N.C. 203 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JAMES G. WISEMAN and WILLIAM E. WISEMAN. |
An appeal cannot be taken in State cases from an interlocutary judgment, and it is only by statute that such appeals can be taken in civil cases.
In cases of necessity, a mistrial may be ordered in capital cases.
The necessity justifying such mistrial, may be regarded as a technical term, including distinct classes of necessity; for instance, the one physical and absolute, as where a juror from sudden illness is disqualified to sit, or the prisoner becomes insane, and so on; another may be termed a case of legal necessity or the necessity of doing justice, as in case of tampering with jurors, and such like--such cases of necessity being the subject of review in this Court after a final decision in the Court below.
Whenever the Court below finds that the jury has been tampered with, a mistrial should be ordered, it being one of the highest duties of a Court to guard the administration of justice against such fraudulent practices.
( State v. Bailey, 65 N. C. Rep. 426; State v. Jefferson, 66 N. C. Rep. 309, cited and approved.)
MOTION to discharge the prisoner from custody, on account of the withdrawal of a juror and a mistrial at the instance of the State.
The indictment (for arson) was found at Fall Term, 1871, of Mitchell Snperior Court, and thence removed on affidavit of defendant to McDowell county, and from thence to YANCY county, where the defendants were put on trial at Fall Term, 1872, of the Superior Court, before Henry, J.
The case made out by his Honor and sent here as a part of the transcript, on the only point material to an understanding of the opinion of the Court, states, that one Wheeler had been appointed the officer to attend the jury, and was sitting in the same box with them; that on the evening of the second day of the trial, after the evidence for the prosecution had closed, and while the defendants' witnesses were being examined, the counsel for the defendants, after asking permission to speak to Wheeler, the officer, called him as a witness and examined him as a matter tending to discredit or contradict the prosecutor, a witness for the State. Upon Wheeler's cross examination, he was asked as to whom he had spoken of the matter--the subject of the testimony. He replied, that while a former witness was giving in his evidence, that he, Wheeler, had remarked to one of the jurors in the box: “That is so, Childs, (the prosecutor) said the same thing to the prisoner in the jail at the last Court.” Wheeler further stated, that he had remarked the same thing in substance to another of the jury and to others. The jurors to whom Wheeler had addressed himself, being called at the instance of the defendants, stated that Wheeler had spoken to them about the matter, but that their minds were not influenced by what he said. One of them stated, that Wheeler had also said to him, that “Childs (the prosecutor) is a mean man and a rascal,” when he was told to go away and not to speak to him, the juror, about it.
The Solicitor for the State, moved that a juror be withdrawn and a mistrial entered.
His Honor allowed the motion, and a juror was withdrawn, whereupon it was moved that the prisoners be discharged from custody, which being refused, they appealed.
Busbee & Busbee, for the prisoners .
Attorney General Hargrove, for the State .
No appeal can be taken in a State case until after a trial and judgment against the defendant in the Court below. An appeal cannot be taken in State cases from an interlocutory judgment, and it is only by statute that such appeals can be taken in civil actions. State v. Bailey, 65 N. C. Rep., 426, and State v. Jefferson, 66 N. C. Rep., 309. The appeal in this case must therefore be dismissed.
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...and the state, and subject to review by this court. Oliveros v. State, 120 Ga. 237, 246, 47 S. E. 627, 1 Ann. Cas. 114; State v. Wiseman, 68 N. C. 203, 206; Andrews v. State, 174 Ala. 11, 56 South. 998, Ann. Cas. 1914B, 760; Com. v. Pells, 9 Leigh (Va.) 613; Thompson v. United States, 155 U......
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State v. Branch, 1
...of doing justice did not require the trial judge to declare a mistrial. State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Wiseman, 68 N.C. 203 (1873). The assignment of error is Mrs. Branch assigns as error the following portion of the court's charge to the jury: 'Counsel for d......
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State v. Birckhead
...two kinds of necessity, i. e., 'physical necessity' and the 'necessity of doing justice' were so classified by Boyden, J., in State v. Wiseman, 68 N.C. 203. As to 'physical necessity,' he said: 'One class may not improperly be termed physical and absolute; as where a juror by a sudden attac......
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...and the necessity of doing justice," a mistrial may be ordered in capital as well as other cases. State v. Bell, 81 N.C. 591; State v. Wiseman, 68 N.C. 203. under the decisions in State v. Garrigues, 2 N. C. 241, In re Spier, 12 N.C. 491, and State v. Ephraim, 19 N.C. 162, where the authori......