Opinion
(December Term, 1851.)
In indictments for misdemeanors the court may, without the consent of the defendant, withdraw a juror when in its discretion it judges it necessary to the ends of justice.
THIS was an application to this Court on behalf of the defendant for a certiorari to the Superior Court of FORSYTH.
The facts are stated in the opinion of this Court.
(204) Attorney-General for plaintiff.
Mendenhall and J. H. Bryan for defendant.
The prisoner is indicted for receiving from one Dean a negro man slave, named Lewis, the property of one Smith, knowing that Dean had stolen him. Upon the trial of the case the prosecuting officer introduced evidence to prove the defendant's guilt, and closed his case. Whereupon it was stated by the court that under the evidence in the case the prisoner could not be convicted, as it appeared that Dean, the man who it was alleged had committed the felony, was then in confinement in the jail of Guilford County, and had not been tried. Whereupon the court, without the consent of the prisoner, but in opposition to his wishes, ordered a juror to be withdrawn. The defendant has brought his case before this Court upon a motion for a writ of certiorari.
His Honor below is sustained in the course he pursued by S. v. Morrison, 20 N.C. 113. The Court there decided that "It must, from the reason and necessity of the thing, belong to the court on trials for misdemeanors to discharge the jury whenever the circumstances of the case render such interference essential to the furtherance of justice. Every question of this kind must rest with the court under all the peculiar circumstances of the case."To this doctrine we now fully assent. The case before us is that of a misdemeanor, and it was within the power of the presiding judge, if he thought it essential to the furtherance of justice, to withdraw a juror. In People v. Olcott, 2 Johnson, 301, Judge Kent, in delivering the opinion of the Court, says there is no alternative; either the court must determine where it is requisite to discharge the jury or adopt the rule as laid down by Lord Coke in cases of felony (1 Inst., 227; 3 Inst., 110), that after a jury (205) is once sworn and charged, no other jury can, in any event, be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, then a door is opened for the exercise of the discretion of the court; he must judge of that necessity and determine what combination of circumstances will create one. Many cases are reported exhibiting that necessity, as where the jury have made long and unavailing efforts to agree, where the juror, after being charged, becomes mentally or physically disabled by sickness or intoxication, or where a witness is absent under circumstances authorizing the belief that he is kept away; and many other causes for the exercise of this discretion are enumerated by the opposite party. Only one case is reported, that I can find, which presents a case much, if not precisely, like this. It is King v. Jeffs, Str., 984. There the defendant was prosecuted for barratry. After the jury was charged, the prosecutor proved that his evidence was deficient, and moved the court to withdraw a juror. Lord Hardwick refused the application, because the punishment might be infamous; but he said "it might be, and had been, done in other cases of misdemeanor."In refusing the application, the judge admitted the power to grant it. And Judge Kent, in commenting on this case and approving of the decision, remarks, "For to allow the prosecution in any case to withdraw a juror because he finds himself not fully prepared in his proofs, is an unreasonable indulgence, unless it appear that some part of the testimony was wanting through the contrivance or agency of the defendant."The rule, then, is that in misdemeanors the court may withdraw a juror when in its discretion it judges it necessary to the ends of justice. No precise rule can be laid down to govern the infinite variety of cases that may come under the general question touching (206) the power of the court to discharge juries charged in criminal cases of misdemeanor. It must be left in the sound discretion of the judge who tries the cause. And it is right it should be so. The reasons for exercising the power must be more accurately perceived and more justly felt by him than by any other court. But aside from its propriety, it being a matter of discretion, this Court has no power to interfere. Brady v. Beason, 28 N.C. 425.
PER CURIAM. Motion refused.
Cited: S. v. Tillotson, 52 N.C. 115; S. v. Johnson, 75 N.C. 124; S. v. Bass, 82 N.C. 572; S. v. Leak, 90 N.C. 657; S. v. Thompson, 95 N.C. 601; S. v. Jacobs, 107 N.C. 779; S. v. Mitchell, 119 N.C. 786; S. v. Andrews, 166 N.C. 351; S. v. Upton, 170 N.C. 770.