130 S.E. 12 | N.C. | 1925
Defendant was tried and convicted of an assault with a deadly weapon upon Louis Porter and Charles Porter, and from the judgment upon such conviction appealed to the Supreme Court. In the record of the case sent to this Court, it appears that the jury which tried defendant was composed of only ten men.
The Constitution of North Carolina, Art. I, sec. 13, provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal."
Nash, C. J., in S. v. Moss,
Ashe, J., in S. v. Stewart,
In S. v. Rogers,
The record proper "imports verity." S. v. Wheeler,
Waiver of certain privileges and rights was discussed recently by Stacy,C. J., in S. v. Hartsfield,
The defendant waived nothing, but insisted on his rights, as the record disclosed. It appearing by the record that the defendant was tried and convicted by ten men, the conviction was improper and no judgment could be rendered. For the reason given, there must be a
New trial.