State v. . DouglassState v. . Douglass
- Reporters:
- Before:
- Settle
We have examined this case with the care* whiсh its importance demands, and have considered not only the points made upon the trial below, but have looked to the record to sеe if anything more could be suggested in favorem vitce. We have found no error in the record. .
Let us consider the points relied upon by the prisoner.
After a verdict of guilty, the prisoner obtained a rule upon’ thе State to show cause why a new trial should not be granted, for the reason that K. H. Worthy, the person who, as Sheriff of Moore county, summoned the rеgular jury, grand and petit, for said term of the Court, as well as the special venire im this case, was not the lаwful Sheriff of the county of Moore.
The facts in rеgard to the office of Sheriff are fully set forth in .the statement of the case made by his Honor, thе presiding Judge. But we are relieved from their cоnsideration and from all inquiries as to the validity of the acts of the Sheriff in regard to the grand jury which found thе bill, and the petit jury which tried this case. Whether he was Sheriff” defacto, or dejure, it is immaterial to inquire; for the objection, if it ever had any force, comes too late. Objection to the grand jury can only be taken before plea in chief, or at’ all events before trial. State v. Martin, 2 Ire. 101, State v. Davis, 2 Ire. 153, State v. Underwood, 6 Ire. 96, State v. Barfield, 8 Ire. 344.
If the prisoner had wished to take аdvantage of this objection to the petit jury аnd special venire, he should have done sо by challenging the array. After he had waived his right of сhallenge, and had taken his chances of аn acquittal before the jury, he could not go bаck and “ take a double chance,,r by impеaching the very jury upon whom he had put himself for a safe deliverance. State v. Ward, 2 Hawks 443, State v. Patrick, 3 Jon. 443.
The different defenсes in criminal pleadings, as in civil, must be brought forward ” in аpt time, due form • and’ proper order.”
A Judge it is truе has discretion to set aside a verdict, and grant a new trial, at the instance of the.prisonеr in all cases *502 where justice may require it; but the еxercise of that discretion cannot be reviewed. The rule was discharged, and the prisoner thereupon moved to arrest the judgment for thе same reason set forth as ground for a.new trial. This motion was also overruled. Judgment can only be arrested for some matter appeаring, or the omission of some matter which ought to аppear, upon the face of record. This matter was not brought forward until after trial and conviction, and formed mo part of the record in a legal sense. Indeed, as said in reference to the rule for a new trial, this objection if it ever had any forpe, will avail nothing by motion in arrest of judgment. State v. Roberts, 2 Dev. & Bat. 540. Whart. Crim. Raw, § 3048. The judgment of the Superior Court is affirmed.
Dpt this be certified &c.
Per Curiam. No error.