York's Will, In re, 7318SC284

• Citation: 18 N.C.App. 425,197 S.E.2d 19
• Decision Date: 13 June 1973
• Docket Number: No. 7318SC284,7318SC284
• Court: North Carolina Court of Appeals
• Parties: In the Matter of the WILL of Fleta YORK, Deceased.

Page 19

197 S.E.2d 19

18 N.C.App. 425

In the Matter of the WILL of Fleta YORK, Deceased.

No. 7318SC284.

Court of Appeals of North Carolina.

June 13, 1973 Certiorari Denied by Supreme Court Aug. 31, 1973.

Henson, Donahue & Elrod by Perry C. Henson and Daniel W. Donahue, Greensboro, for caveators appellees.

Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Greensboro, for propounders appellants.

BRITT, Judge.

Propounders assign as error certain instructions of the court to the jury. A review of the proceedings leading up to the instruction challenged by Exception No. 30 is necessary for a proper understanding of the exception.

The record reveals the following: At 4:00 p.m. on Friday, the jury in this case had been deliberating for some time and at that time the trial judge announced that he had a commitment which made it absolutely necessary that he leave. The parties agreed that the judge could absent himself from the court while the jury was deliberating and if the jury returned with a verdict, the verdict could be taken by the Clerk in the absence of the judge with the same legal effect as if taken by the judge. The parties further agreed that in the event the jury returned to the courtroom and asked for further instructions that the Clerk would tell the jury that the judge had to leave and that the jury would return on the following Monday at 9:45 a.m. for further proceedings in the case. It was further agreed that if the jury did not return with a verdict by 7:00 p.m., they would be recalled to the courtroom and dismissed by the Clerk to return on Monday at 9:45 a.m.

After the judge left on Friday afternoon, the jury knocked on the door and advised the bailiff that they wanted to come out. The jury returned to the courtroom and the bailiff relayed the issues from the jury to the Clerk. The Clerk inquired if the jury had agreed upon their verdict, hesitated a moment and nothing was said; the Clerk then, after observing the issues, said: 'You answer the first issue yes and the second issue yes.' A member of the jury then stated: 'We haven't finished yet. We want to ask the judge a question.' Thereupon the Clerk dismissed the jury and instructed them to return at 9:45 a.m. on Monday.

On the following Monday morning, the jury returned and the judge stated that he understood they had a question to ask the court. A juror replied that they would like for the court to charge them again on the third issue. The court proceeded to do so and the jury retired for further deliberations. Counsel for the caveators then made a motion that the court, in its discretion, declare a mistrial 'for the reason that the verdict was purportedly taken and was announced to all the parties and that if the jury deliberates further, the jury would not know that it would still have the right to change its answers to issues No. 1 or No. 2, and that it is a partial verdict.'

Counsel for caveators then stated that if the court would call the jury back and instruct them to the effect that they still had the right to change their answers to issues one and two, the caveators 'would have no more complaints.' Thereupon the jury was recalled to the courtroom and the court gave additional instructions as follows:

'COURT: Members of the jury: in stating to you a few minutes ago, I...