State v. . McDowell , 123 N.C. 764 ( 1898 )

The defendant was tried and convicted of robbery. There was no exception to the evidence or the charge to the jury. The case was called on Wednesday. The regular jurors were exhausted by challenge for cause or peremptorily. The few persons in the court room were summoned as tales jurors and they were challenged for cause or peremptorily. Failing to get a jury from persons present or in call of the court, his Honor adjourned court until next morning and directed the sheriff to summon fifty freeholders from the county to attend next day. Next day the court directed the sheriff to call any persons who were then bystanders into the jury box, and they were tendered. The defendant, after exhausting his peremptory challenges, objected to several of the jurors because they were not bystanders on the day before, and were then present only by reason of said summons by the sheriff under said order of the court. Objection overruled, and several of the said summoned jurors sat on the jury.

The case states that the jurors were otherwise competent and impartial. Motion for new trial was overruled and the defendants appealed.

At common law the jury is summoned by a venire and the sheriff makes return of the writ. 1 Chitty Cr. Law, 505-509. In well nigh all the states the matter is regulated by statute. Code, ch. 39. The power to arrange the order and to provide for the probable necessities of the business of the court, is incident to all courts. The order was not to bring in talesmen for any particular case; it was an order to bring freeholders of the county within reach of the court, when it might become necessary to order talesmen. The order was an expedient (767) act in reference to the business of the court. It was calculated to secure an impartial jury, by getting men from the county, honest, uncommitted, unbought and unmerchantable men, rather than the professional, loafing jurymen, who hang about the courthouses, ready to be used if it should happen that prosecutors or prosecuting officers, or defendants or defendants' counsel or sheriffs, or their deputies should so far forget their occupation and honorable obligation as to bring them into the jury box. The purity of the administration of the criminal law does not seem to be endangered by such course. If growing out of the want of a venire, there was anything going to show that the prisoner is not tried by an impartial jury, boni et legales homines, that would be ground for a new trial. There may be no bystanders then present, or all present may be unfit persons, or they may have been procured to be present by parties in anticipation of a failure of the regular panel. The business of the court must proceed with reasonable dispatch, without injury or prejudice to the rights of the accused. "Persons who are not bystanders in the court may be summoned as talesmen, for when they come in they are bystanders. " 5 Bacon Ab., 337.

S. v. Lamon, 10 N.C. 175, was a case of murder. The sheriff summoned as talesmen men who were not bystanders in the courthouse, and it was held that when they came in they were bystanders and bound to serve, although they had been called from a distance.

S. v. Cody, 119 N.C. 908, was a case of burglary. The defendant's exception was that the judge, in ordering a special venire, directed the sheriff to summon as far as possible only freeholders who were not disqualified by our statute, i. e., to summon legales homines. (768) This was not only no error, but was considered by this Court as a mode of getting a jury less liable to challenge than would be tales jurors picked up in the court room.

U.S. v. Loughery, 13 Blatch, 267, was an indictment for coining, and under an order of the court the marshal summoned as jurymen persons not in or about the courthouse when the order was made, or when summoned, and it was held that they became bystanders when present, and the opinion states that, how long they had been present or how they happened to be present, is of no consequence, provided no fraud or collusion or improper action is suggested.

Challenge is not given to the prisoner that he should have a particular individual on the jury, but that he should not have one against whom he had a valid objection. In other words he has the right to accept or reject, but not the right to select.

The decided cases cited above are cases of felony, but we see no reason why the principle should not apply to misdemeanors, when a necessary occasion arises, provided always that no prejudice to the rights of the prisoner shall appear.

Affirmed.

Cited: S. v. Kinsauls, 126 N.C. 1096; Perry v. R. R., 129 N.C. 334;Ives v. R. R., 142 N.C. 137; Hodgin v. R. R., 143 N.C. 95.

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