State v. Smith , 268 N.C. 659 ( 1966 )

151 S.E.2d 596 (1966) 268 N.C. 659

STATE of North Carolina
v.
James Henry SMITH.

No. 672.

Supreme Court of North Carolina.

December 14, 1966.

T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

Egerton, Alspaugh & Rivenbark, by Laurence Egerton, Jr., and W. Douglas Albright, Greensboro, for defendant.

SHARP, Justice.

Both the State's and defendant's evidence tended to show that deceased died from a wound which defendant intentionally inflicted with a pistol. Defendant's motions for nonsuit were, therefore, properly denied. State v. Redfern, 246 N.C. 293, 98 S.E.2d 322; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322; 2 Strong, N.C. Index, Homicide § 20 (1959). The credibility and sufficiency of defendant's evidence to establish his plea of self-defense were for the jury to evaluate in the light of the court's instructions. The judge's charge embraced all the applicable principles of law relating to self-defense, State v. Marshall, 208 N.C. 127, 179 S.E. 427, and it fairly presented all of appellant's contentions. Defendant was unable to satisfy the jurors, who heard him and his witness testify and observed their demeanor, that the homicide was excusable. Under the evidence, the jury might well have returned a different verdict. Defendant's guilt or innocence, however, could only be determined by the twelve, and their verdict must stand unless some error of law appears in the trial.

In a last-ditch effort to escape the verdict, defendant now contends—for the first time—that it is invalid because the jurors were not sworn to try this particular case after they had been selected and impaneled for it. At the beginning of the term, however, the Clerk of the Superior Court had administered to the individual jurors who tried this case, and to all others who had been summoned as jurors for that week of the Session, the following oath which G.S. § 11-11 prescribes for the "jury, in criminal actions not capital":

"You and each of you swear (or affirm) that you will well and truly try all issues in criminal actions which shall come before you during this term, and true verdicts give according to the evidence thereon; so help you, God. (The same oath to talesmen, by using the word ``day' instead of ``term'.)"

For the "jury, in a capital case," G.S. § 11-11 prescribes a specific oath which must be administered to each juror before he is seated on the panel to try the case. Defendant here was indicted for a capital crime, but when the solicitor announced to the court as the case was called for trial that the State would not seek a verdict of murder in the first degree, the case became a "criminal action not capital." It was after this announcement that defendant entered his plea and the jury was selected.

Defendant correctly asserts that under the common law it was essential "that the jury be duly sworn to try the cause." 31 Am.Jur., Jury § 242 (1958). (Emphasis added.) See also 50 C.J.S. Juries § 294 (1947). Where, however, the statute so provides, a general oath may be administered to jurors at the opening of a court for the trial of issues and it is not necessary that they should be sworn in each cause in which they are called. People on relation of Wands v. Albany Common Pleas, 6 Wend. (N.Y.) 548; 31 Am.Jur., Jury § 242, supra.

In North Carolina, the common-law requirement that jurors be sworn to try the cause was changed with reference to civil cases "At a General Assembly, begun and held at Fayetteville on the First Day of November, in the Year of our Lord, One Thousand Seven Hundred and Ninety, and in the Fifteenth Year of the Independence of the said State: Being the First Session of the said Assembly." Preamble to the Laws of North Carolina (1790). Chapter IX of these Laws provided:

"WHEREAS the present method practised in the courts of law in this state of swearing the petit jury in every cause, in some measure retards the business in said Courts, and such frequent use of oaths in a great measure destroys their solemnity:

"I. Be it therefore enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, That from and after the first day of June next, the clerks of the respective courts of law, shall at the beginning of their courts, swear or cause to affirm such of the petit jury as are of the original pannel, well and truly to try all civil causes that shall come before them according to the evidence given thereon, and if there should not be enough of the original pannel, talismen shall take a similar oath or affirmation to try such causes as shall come before them during the day. Provided always * * * that nothing herein contained shall be construed to alter the present method of swearing petit jurors on state trials, but the same shall continue in the usual form as heretofore practised."

In Taylor's Revisal of 1827, Chapter 1133, it was enacted,

"That in the trial of all pleas and prosecutions for offences not capital, unless in cases where the courts may otherwise direct, petit jurors, as well (as) talismen, as those of the original pannel, shall be sworn or affirmed, (as the case may be,) well and truly to try all issues of traverse, that shall come before them during the day." (Italics ours.)

Thus, instead of swearing jurors in every criminal case, in 1827 they were sworn only once a day. In the Revised Code of North Carolina, enacted by the General Assembly of 1854, Chapter 76 (30), we find the same oath provided for "criminal cases not capital" which is now incorporated in G.S. § 11-11. Thus, in 1854, the "method of swearing petit jurors on State trials" other than capital (which the General Assembly of 1790 had refused to alter when it changed the method of swearing jurors in civil actions) became the same as that prescribed in civil trials. Since 1827 the statute—not the common law—has governed the procedure in cases such as this.

The method employed by the Clerk of the Superior Court in swearing the jurors who tried this case has had the sanction of the law for more than one hundred years. We have known of no other procedure in our lifetime.

In the trial below, we find

No error.