Moore v. Edmiston

70 N.C. 471 | N.C. | 1874

Lead Opinion

ByNuh, J.

This is a civil action, here by appeal from an order of the Court below, setting aside a verdict for the defendant and granting a new trial upon the following state of facts, found by his Honor, to-wit: “ In this case, it appearing from the affidavits, filed by plaintiff, to the satisfaction of the Court that after the testimony was all given, the argument of counsel concluded, and after the jury had been charged by the Court and directed to retire and consider of their verdict, and before they had found said verdict the said jury, without leave of the Court and without the knowledge or consent of the plaintiff’s counsel, separated and dispersed themselves, and whilst so dispersed, partook of refreshments and remained so separate and dispersed, conversing with other persons for the space of one hour. It is thei’efore considered, ordered and adjudged by the Court, that their said verdict in this case be set aside and a new trial be had. Wherefore, let a jury come, &c.”

Was this error in law ?

Before answering this question, it is necessary to enquire whether the granting or refusing a new trial, by the Judge below, is a matter of law, or a matter of discretion, for if it is the latter, this Court can seldom review its exercise; if the former, the exercise of the power is always the subject of review here.

In the State v. Miller, 1 Dev. & Bat. 500, the facts were, that during the progress of the trial, the jurors retired under the charge of an officer, by permission of the Court. They all soon returned but one, who came in two minutes afterwards and excused himself by stating that he had stepped aside to obey a call of nature. The prisoner proposed to prove, and it was assumed as a fact, that the juror had gone into a grocery, near by, for a drink. The prisoner was convicted of murder and moved the Court for a new trial for misconduct in the jury, which motion was refused, and he appealed to the Supreme Court. The judgment was there affirmed by a divided Court.

RuefiN, C. J.,

in delivering the opinion of the majority, holding, that while the conduct of the juror was irregular, yet as it did not appear that he was tampered- with or the prisoner prejudiced therby, the mere misconduct of the juror did not vitiate the verdict so as to render it, in law, null, but that it was a matter wholly addressed to the presiding Judge to grant or refuse a new trial.

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Dissenting Opinion

GastoN, J,

in his dissenting opinion, contended that the verdict was vitious, and in law void, and that the prisoner was, therefore, as a matter of right, entitled to a venire de novo. For the purposes of this case, it matters not which of these eminent Judges was right, or which- was wrong, for by the opinion of either or of both, the Judge, in our case, had the right to set aside the verdict and grant a new trial, the one making it a matter of law, ijtie other a matter of discretion. If it was a question ot right, as contended by G-astoN, J., then the verdict must be set aside ; if it was a matter of discretion, as held by the Court, then the Judge may set it aside, so qua-cunque via data, the order of the Judge granting a new trial, was proper.

We are not called upon now to decide the vexed question, as to what acts of misconduct in jurors, after they are charged with a case and retire to enquire of their verdict, so vitiate their verdict as to constitute a mistrial, the legal effect of which is that it must be sot aside as null and void, and a venire de novo awarded. That question was fully discussed and considered in Miller’s case, before cited, but no conclusion was then arrived at.

The same question again came before this Court in the State v. Tighlman, 11 Ired. 578. The prisoner was convicted, and moved for a venire de novo for the misconduct of the jury, upon the following facts found: The jury, under the charge of an officer, was confined in the ordinary jury room from Thurs^ day night to Saturday morning, before returning their verdict. While out, the members of the jury separated often to obey the calls of nature, though under the charge of an officer. One juror visited a drugstore, one hundred and fifty yards off, to procure medicine. He was under the charge of an officer and conversed with no one except the keeper of the drugstore, who asked him if they had agreed in their verdict, to which he replied, that-“they had not.” Another juror separated himself from his fellows and stood outside of the jury room with the door closed, and conversed ten or fifteen minutes, with one Richardson, privately, about what did not appear. The jurors, while out, ate and drank with permission of the Court, part of the time, and when enjoined by the Court not to eat or drink, they violated the order, contrary to the wishes of the officer having them in charge. Several jurors wrote notes and letters and dropped them from the windows of their room, and they also received letters from persons not of the jury’. The contents of the letters did not appear to the Court. Some of the jurors conversed from the windows with persons in the street on various subjects and about this suit. "What was said did not appear. Negro servants and children of the jurors had access to the jury room, the servants to carry food and clothing, and the children to sec their fathers. The Court being of opinion that the sepation and other irregularities of the jury did not vitiate the verdict, pronounced judgment of death upon the prisoner.

Upon appeal, the case was argued in behalf of the prisoner, with great learning, and all the cases 'reviewed. The j udgment of the Court below was affirmed by a unanimous bench.

PEARSON, J., in delivering the opinion of the Court, said: “ Perhaps it would have been well, had his Honor, in his discretion, set aside the verdict and given a new trial, as a rebuke to the jury, and an assertion of the principle that trials must not only be fair, but above suspicion.

“ This, however, was a matter of discretion, which we have no right to reverse. Our enquiry is, was the misconduct and irregularity such as to vitiate the verdict, to make it in law null and void and no verdict ?

“ In the consideration of this question we have had occasion to review State v. Miller, 1 Dev. & Bat., 500, and it seems to us that the decisions of the Court and the distinction between cause for a new trial, which is a matter of discretion, and cause for a mistrial, which is a matter of law, is fully sustained by authority and by reason. * * * * *

“We wish not to be understood as disclaiming a right to grant a venire de novo, when it is made to appear on the record that there has not been a fair trial; on the contrary, we assert that right, whether it is to be exercised for or against the prisoner. We take this plain position : If the circumstances are such as merely put suspicion on the verdict, by showing, not that there was, but that there might have been undue influence brought to bear on the jury, because there was opportunity and a chance for it, it is a matter within the discretion of the presiding Judge. But if the fact be that undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor or prisoner, or if they be solicited and advised how their verdict should be, or if they have other evidence than that which was offered on the trial, in all such cases there has, in contemplation of law, been no trial; and this Court will, as a matter of law, direct a trial to be had, whether the former proceeding purports to have acquitted or convicted the prisoner.”

If, therefore, two decisions of this Court, after full argument and mature consideration, can settle this question, it must be considered at rest in this State.

In the last case, the dividing line between matter of discretion which this Court cannot revise, and matter of law, which it can review, is as clearly and distinctly drawn as the nature of such eases will permit, and sufficiently so for all practical purposes.

That line of distinction is, that to vitiate and avoid a verdict, it must appear upon the record that undue influence wa? brought to bear on the jury. All other circumstances of sus picion address themselves exclusively to the discretion of the presiding Judge, in granting or refusing a new trial. He is clothed with this power because of his learning and integrity, and of the superior knowledge which his presence at and participation in the trial gives him over any other forum. However great and responsible this power, the law intends that the Judge will exercise it to further the ends of justice, and though doubtless, it is occasionally abused, it would be difficult to fix upon a safer tribunal for the exercise of this discretionary power, which must be lodged somewhere.

Our case is favorably distinguished from the cases of Miller and TilgJiman, in that, there new trials were refused and the prisoners were executed,, while here a new trial was granted, and the only inconvenience seen is the trivial one of a short postponement of the ease. If tire defendant has merits, be need not fear a second trial, if he- has none, the new trial is granted in the interests of justice.

By C. 0. P., sec. 299, an appeal is allowed as well from an order granting as refusing a new trial, but in either case, the matter appealed from must be “ of law or legal inference.’5. Heretofore it has been the practice of Superior Courts, in granting new trials, not to put upon record the facts or reasons moving them thereto, and we know of no rule of law requiring it to be done. But now, to give parties the benefit of the above section of the Code, the Courts should, and no doubt will, on exceptions taken by the parties aggrieved, put upon the record the matters inducing the order granting as well as refusing a new trial. The appellate Court can thus see whether the order presents a matter of law which is the subject of review, or matter of discretion, which is not. In this-way only, it is conceived, can the full benefit of that provision of the Code be secured to suitors. However, no difficulty of that kind arises here, for the facts upon which the new trial is granted appear upon the record, audit thereby plainly appears that the Judge exercised a discretionary power only, which this Court cannot revise, and if it could, would say was properly exercised in this case. Exchange Bank of Columbia v. Tiddy et al, 67 N. C. R. 169: love v. Moody, 68 N. C. R. 200; Vest v. Cooper, 68 N. C. R. 131.

Per Curiam.. Judgment affirmed.