State v. Stephens ( 1981 )

WEBB, Judge.

[1 ] The court committed error when it did not follow the procedure mandated by G.S. 15A-1214 for the selection of the jury. It was also error not to impanel the jury. See G.S. 15A-1216.

In State v. Harper, 50 N.C. App.___, 272 S.E. 2d 600 (1980) this Court held the defendant did not show prejudicial error in the superior court’s failure to follow the mandate of G.S. 15A-1214 in selecting the jury. This Court reasoned that since the defendant did not exercise all his peremptory challenges, the jurors impaneled met with the defendant’s approval. In the case sub judice, the defentant exercised six peremptory challenges but did not attempt to exercise an additional peremptory challenge. We hold that we are bound by State v. Harper, supra. We find no prejudicial error in the violation of G.S. 15A-1214.

As to the failure to impanel the jury in violation of G.S. 15A-1216 and G.S. 15A-1221(3), we hold this was prejudicial error. As is stated in the Official Commentary to G.S. 15A-1216, jeopardy does not attach until the jury is impaneled. This is too critical to the rights of the defendant to say it is not prejudicial.

Although we have not reversed because of the failure to follow G.S. 15A-1214, we do not approve of this procedure. The General Assembly has mandated a procedure for selecting juries. It is the duty of the courts to follow the law as enacted by the General Assembly.

New trial.

Judges Hedrick and Hill concur.