State v. Wood

• Decision Date: 08 May 1918
• Docket Number: 466.
• Parties: STATE v. WOOD.
• Court: North Carolina Supreme Court

95 S.E. 1050

175 N.C. 809

STATE v. WOOD.

No. 466.

Supreme Court of North Carolina

May 8, 1918

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

Arvil Wood was convicted of a secret assault with intent to kill a near relative. His plea in abatement was overruled, and after verdict of guilty he moved in arrest of judgment on the same plea, which being refused, he appeals. Refusal of motion affirmed.

E. B Cline, Judge Presiding."

Allen J., dissenting.

If judge of superior court who should have held term was detained by illness or other unavoidable cause, it was within Governor's power to assign another judge to hold second week of term, or whole term, who became judge de facto and de jure.

Before Ferguson, J., at December term, 1917, of Randolph, the defendant was convicted of a secret assault with intent to kill W. Fernando Wood, a near relative, and sentenced to 12 months' imprisonment. There is no allegation of error in the trial, but the appeal rests entirely upon assignments of error for a refusal of a plea in abatement. The regular December term of Randolph should have opened on Monday December 3, 1917. At that time Hon. E. B. Cline, the judge, holding the courts of the district, being still engaged in the trial of Gaston B. Means for murder in Cabarrus, addressed the following letter to the sheriff of Randolph:

Concord, N. C., Nov. 30, 1917.

To the Sheriff of Randolph County, N.C. Confirming my message to you of this date you are ordered and directed to adjourn the approaching term of the superior court of Randolph from Monday December 3-15 to begin on Monday December 10, 1917, which is Monday of the second week of the term, this order being made by reason of the fact that I shall be compelled to continue in court here during next week and neither I, nor the solicitor, can be in Randolph before December 10th. Please make this known to attorneys, jurors and witnesses as soon as possible, certainly not later than next Monday morning at the courthouse door. All witnesses should be directed to return December 10th. The first week's jurors are excused but there should be as many as 24 summoned for the second week and 36 would be better if they can legally be had.

Whereas, it has been made to appear to the satisfaction of his excellency, the Governor, that the Hon. E. B. Cline, assigned by law to hold the regular term of the superior court, for the county of Randolph, in the Fifteenth judicial district, is unable to do so by protracted illness or unavoidable accident: Now, therefore, I, T. W. Bickett, Governor of the state of North Carolina, by virtue of authority vested in me by article four, section eleven, of our state Constitution, do hereby require and commission you to hold the regular term of the superior court for the county aforesaid, beginning on Monday the 10th day of December, 1917, for one week."

The defendant entered a plea in abatement on the following grounds:

The bill of indictment was not found by a legally constituted body. The defendant is not informed whether this term of the court is a regular or a special term. The board of commissioners did not give 30 days' notice of said term of court as provided by statute, and failed to draw a jury for said term of court as provided by statute, and there was not 18 jurors drawn for a grand jury by a child not 10 years of age. That the 16 jurors who were serving as grand jurors are of the jurors drawn for the second week of the term, and were not drawn for grand jurors for the first week, and the men serving were all drawn for the second week; that the Governor did not notify the chairman of the board of county commissioners of the present called term of this court and give him an opportunity to draw a jury according to law in that there was not 30 days' notice given in the newspapers according to law as defendant is informed and believes."

The plea in abatement further itemizes as follows:

(1) That if this term of the court is not a special term, but is a regular term, the same is not sitting according to statute; that the sheriff had the right to open the court from day to day till the fourth day of the term, and then the term should have continued to Monday of this week, and on Monday of this week the judge did not appear, then the court stood continued till the next term of the court.

(2) That if the court was called by the Governor, as defendant is informed, he could not order an exchange of courts between Judge Cline and Judge Ferguson under the statute when Judge Cline was holding court in the district in which Randolph county is a part of the same organization of the court.

(3) That W. C. Hammer is prosecuting the docket as solicitor and is holding and filling the office of the district attorney for the United States, which is an office of trust and profit within the meaning of the Constitution, and his acts as such solicitor are null and void, as he could not hold two offices at the same time; and that the solicitor for the state has no right to delegate the duties of his office to another person.

(4) That there was not 18 members of the grand jury at the term of court when the bill was found; that there was only 16 of said grand jurors; and that they were not drawn by a child under 10 years old, but were called into the box and charged."

The judge overruled the plea, and found the following facts:

That Judge Cline, who is assigned by law to hold the regular term of this court, is engaged in the trial of a capital case in the county of Cabarrus, and the Governor of the state called upon and requested Judge Ferguson, the present presiding judge, to hold this week of court for Judge Cline, and that Judge Ferguson was unable to reach the court on Monday, and so notified the sheriff that the court would open on Tuesday. Upon the opening of the court Tuesday morning it is ascertained that the jury for the first week had been notified they need not attend the second week of court, by Judge Cline. That on calling over the jury, the judge ascertained that there were only 16 jurors in attendance upon the court who were drawn by the county commissioners to serve for the second week of the term, and, being of the opinion that the grand jurors should be drawn by the county commissioners from the regular jury box, the 16 men were impaneled and charged as grand jurors without the form of having a child to draw their names from the box.

Hayden Clement, solicitor for the judicial district, is engaged as solicitor in the prosecution of a capital case, State v. Means, in the county of Cabarrus, and that he requested W. C. Hammer, attorney of this court, to represent him at this term of court, the said Hammer being United States district attorney for the Western district of North Carolina, and the court designated and requested the said W. C. Hammer to represent the state as solicitor during the term of court, and made the record that he was appointed to act as solicitor during the term."

Upon the foregoing findings of facts by the court, the plea in abatement is overruled, and the defendant excepts. After verdict of guilty was rendered the defendant moved in arrest of judgment on the same plea in abatement, which being refused, the defendant excepted, and from the sentence imposed appealed.

Brittain & Brittain, of Ashboro, for appellant.

Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.

CLARK C.J.

There are no exceptions to the evidence or the charge or to the merits in any way. The defendant's exceptions are all based upon the plea in abatement, which are, as stated in the defendant's brief, substantially as follows:

1. "That the term should have begun on December 3, 1917, and the sheriff had power only to adjourn from day to day until the fourth day of the term, and if the judge did not appear, the court should have been adjourned till the next term, and that the action of the court held the following week was therefore a nullity." Revisal, § 1510, authorized the sheriff to take the above action, but there is a provision also in that section, "unless" the sheriff "shall be sooner informed that the judge from any cause cannot hold the term." This includes, by uniform custom and from the nature of the case, an instruction from the judge to adjourn to any later day in the term. This not infrequently happens by reason of the sickness of the judge or other engagements, as in this case. The judge here instructed the sheriff to adjourn the court till the following Monday, and this action was within his authority. In McNeill v. McDuffie, 119 N.C. 336, 25 S.E. 871, where the judge was detained, as in this case, by holding court in another county (Richmond), he instructed the sheriff of Cumberland to adjourn that court till the second Monday, and this court held:

"The judge may appear on any day within the two weeks, if the court has not previously been adjourned, and that part of the term actually held will be as valid as if court had been opened on the day fixed by the statute"--saying: "It can make no difference what was the cause of the judge's absence, whether illness or attending to official duties elsewhere. The material and only essential facts are that the judge designated by law to hold the court appeared within the time prescribed and held it, the court not having been previously adjourned, in consequence doubtless of directions given to the sheriff by the judge."

If however, the judge had given no such directions and it was a matter of fact, as in this case, that the sheriff "had not adjourned the court till the next term, and the judge afterwards, in the second week, actually appeared and held court, his action would be valid." Norwood v. Thorp, 64 N.C. 682, which has been cited since with...