State v. . Anderson
47 S.E.2d 1
N.C.
1948
Check Treatment
EeviN, J.

Subsеquent to the passing of the death sentence, the prisoner: challenged the validity of his trial for two reasons not theretofore advanced by him. He then asserted for the first time that the court was “illegally constituted and without authority to try and sentence him at the term beginning August 25, 1947, as thе commission of the Governor commissioned Judge Henry A. Grady to hold a term of court in Pitt County beginning on Monday, the 25th day of July, 1947,” and that the members of the petit jury “who were of the special venire were illegally summoned and, therefore not duly constituted jurors as no order was signed and issuеd by the trial judge to the sheriff of Pitt County to summon the special venire.”

This Court judicially knows these things : (1) That 25 July, 1947, fell on Friday and not on Monday, 31 C. J. S., Evidence, seсtion 100; (2) that no regular term of the Superior Court of Pitt County was scheduled to begin on 25 July, 1947, or on any other day during such month, G. S., 7-70; (3) that a regular term of the Suрerior Court of Pitt Coiinty was appointed by law to begin on Monday, 25 August, 1947, and to continue *725 for one week for tbe trial of criminal and civil cases, G. S., 7-70; Corbin v. Berry, 83 N. C., 28; 31 C. J. S., Evidence, section 47; (4) tbat Honorable W. C. Harris, tbe Judge of tbe Sevéntb Judicial District, was assigned ‍‌​‌​‌‌‌​​‌‌​‌‌​‌‌​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​‍to bold sucb term of tbe Superior Court of Pitt County under Article IY, Section 11, of tbe State Constitution, Corbin v. Berry, supra; (5) tbat Honorable Henry A. Grady was an Emergency Judge of tbe Superior Court at tbe times in question. Reid v. Reid, 199 N. C., 740, 155 S. E., 719; Bohannon v. Trust Co., 198 N. C., 702, 153 S. E., 263. When tbе commission of tbe Governor is read and construed in its entirety in tbe light of these matters, it becomes indisputably manifest tbat tbe Governor therеby commissioned Judge Grady to bold tbe term of tbe Superior Court of Pitt County convening on Monday, 25 August, 1947, and tbat tbe recited date “July 25, 1947,” in tbe concluding part of tbe commission constituted a mere clerical error without tendency to mislead. Consequently, we overrule tbe challengе to tbe authority- of Judge Grady to bold tbe court at which tbe prisoner was tried, convicted, and sentenced. See N. C. Const., Art. IV, Section 11; G. S., 7-50.

Tbe writtеn order made out by tbe court and placed in tbe bands of tbe sheriff for execution was entitled as of this action, and commanded tbe sheriff to summon a special venire of twenty-five freeholders from tbe body of Pitt County to appear before tbe court on a sрecified day to act as jurors in this particular case. Clearly it was, in substance, a special writ of venire facias. Durrah v. State, 44 Miss., 789, 796; Waterbury v. Miller, 13 Ind. App., 197, 41 N. E., 383; Thurman v. Commonwealth, 107 Va., 912, 60 S. E., 99. As tbe special venire was nоt to be drawn from tbe box, tbe order properly specified tbat ‍‌​‌​‌‌‌​​‌‌​‌‌​‌‌​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​‍tbe venirejnen were to be freeholders. G. S., 9-11; G. S., 9-16; G. S., 15-165; S. v. Lord, 225 N. C., 354, 34 S. E. (2d), 206. The record discloses that tbe sheriff executed tbe order and returned it to tbe clerk of tbe court on the day when it was returnable, with tbe names of tbe twenty-five freeholders summoned by him. It, therefore, appears tbat the special venire was ordered and summoned in substantial compliance with tbe relevant statute. G. S., 9-29. See, also, S. v. Parker, 132 N. C., 1014, 43 S. E., 830. As there is nothing in tbe record indicating tbat sucb omission adversely affected in any degree tbe inherent right of tbe prisoner to a trial by a fair and impartial jury, we are constrained to bold tbat tbe failure of tbe trial judge to sign tbe order was at most an irregularity which did not invalidate tbe special venire.

Moreover, tbe prisoner’s objection to tbe jurors is unavailing for tbe additiоnal reasons tbat it was not raised in apt time or in tbe appointed way. It is to be noted that tbe ground of bis objection to tbe petit jurors “who were of tbe special venire” was apparent to tbe prisoner on tbe face of tbe record before tbe court embarked upon tbe task of selecting a trial jury, and tbe prisoner did not assert tbat such jurors were dis *726 qualified until after be bad been convicted and sentenced to death. He waived any right to question the competency ‍‌​‌​‌‌‌​​‌‌​‌‌​‌‌​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​‍of the special venire as a whole by proceeding to trial without interposing a challenge to the array. S. v. Douglass, 63 N. C., 500; S. v. Kirksey, 227 N. C., 445, 42 S. E. (2d), 613. He did not object to the jurors in question as individuals by challenges to the polls. S. v. Kirksey, supra; S. v. Koritz, 227 N. C., 552, 43 S. E. (2d), 77. Besides, the petit jury was obtained from the original panel and the special venire without the peremptory challenges allowed the prisoner by statute being exhausted. S. v. Bregden, 111 N. C., 656, 16 S. E., 170.

The prisoner challenged the sufficiency of the State’s evidence to sustain cоnvictions for arson and murder by motions for judgment of nonsuit, and reserved exceptions to adverse rulings on these motions.

Obviously, the testimony offеred by the State was sufficient to justify the eonchisions that the dwelling house of Willie Belle Cratch, Bobbie Eugene Cratch, and Jessie Cratch was willfully and maliciously burned by the criminal ‍‌​‌​‌‌‌​​‌‌​‌‌​‌‌​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​‍agency of some responsible person, and that such person was the prisoner. It follows that the cоurt properly submitted to the jury the question of the prisoner’s guilt upon the first count in the indictment charging arson. S. v. Laughlin, 53 N. C., 455; S. v. Porter, 90 N. C., 719; S. v. McCarter, 98 N. C., 637, 4 S. E., 553. Furthermore, it is plain that the evidenсe adduced by the State was ample to warrant a finding that the' prisoner perpetrated or attempted to perpetrate the crime of arson upon the dwelling house of Willie Belle Cratch, Bobbie Eugene Cratch, and Jessie Cratch, and thereby proximatеly caused their deaths. It thus appears that the court was required to leave to’ the jury the questions of whether the prisoner was guilty of murdеr in the first degree as charged ún the second, third, and fourth counts. Gf. S., 14-17.

The testimony of the State’s witnesses, George Gardner and Bunion Taft, seems to hаve been competent. Be this as it may, however, the prisoner waived the benefit of his exceptions to its admission by permitting other evidence to the same effect to be received without objection. S. v. Oxendine, 224 N. C., 825, 32 S. E. (2d), 648.

The record does not sustain the prisoner’s contentiоn that he suffered prejudice because the court in its charge used more time in reviewing the contentions of the State than it did in outlining thosе of the prisoner. The action of the court in this respect was made inevitable by the fact that the volume of the State’s testimony was much greater than that presented in behalf of the accused. S. v. Cureton, 218 N. C., 491, 11 S. E. (2d), 469. As Mr. Justice Barnhill observed in S. v. Jessup, 219 N. C., 620, 14 S. E. (2d), 668, if the prisoner “considered that the court had failed to give fully and accurately the contentions ‍‌​‌​‌‌‌​​‌‌​‌‌​‌‌​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​‍made by him, or if he desired any amplification thereof, it was his duty to call the court’s *727 attention theretо at the time.” The prisoner’s exception to the charge “as a whole” is an unpointed exception which is unavailing on appeal. Miller v. Bottling Co., 204 N. C., 608, 169 S. E., 194. The other exceptions to the charge have been abandoned under Rule 28.

The jury found the prisoner guilty of the crime of аrson, but did not recommend that his punishment therefor should be imprisonment for life rather than death as authorized by the statute. G. S., 14-58. Likewise, it convicted him of murder in the first degree. G. S., 14-17. Hence, the sentence of death was mandatory.

"We have striven to give the matters at issue on this appeal a consideration commensurate with the present plight of the prisoner and the deplorable tragedy out of which the prosecution arose. Our endeavor in this respect convinces us that no error in law occurred on the trial.

No error.