Defendants first assign as error the action of the trial judge in permitting the Solicitor to reexamine and successfully challenge for cause Mrs. Joyce Granberry, a prospective juror who had been passed by the State and tendered to defendants.
Before the State passed and tendered Mrs. Granberry to defendants, she indicated her willingness to vote for a verdict which would result in the death penalty. Prior to jury impanelment, however, Mrs. Granberry let it be known that she had *48 changed her opinion about capital punishment. The trial judge thereupon allowed the Solicitor to reexamine the prospective juror. This reexamination revealed that she had talked with her pastor during the overnight recess and, as a result of that conversation, she would not under any circumstances vote for a verdict which would impose the death sentence. Over defendants’ objections the trial judge allowed the Solicitor to successfully challenge the prospective juror for cause. The court then gave an additional peremptory challenge to each defendant who had previously passed the prospective juror.
The competency of jurors is a matter to be decided by the trial judge. Decisions as to a juror’s competency at the time of selection and their continued competency to serve are matters resting in the trial judge’s sound discretion. G.S. 9-14;
State v. Johnson,
In the case of
State v. Atkinson,
“The desire of a prospective juror to affirm rather than take an oath is not, of itself, cause for challenge in this State. See: G.S. 9-14; G.S. 11-11. On the other hand, nothing else appearing, even the erroneous allowance of an improper challenge for cause does not entitle the adverse party to a new trial, so long as only those who are competent and qualified to serve are actually empaneled upon the jury which tried his case.”
The Court further said:
“It has long been established in this State that it is the right and duty of the court to see that a competent, fair and impartial jury is empaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party. (Citations omitted.) It is immaterial that this is done as the result of information voluntarily disclosed by the prospective juror without questioning. State v. Vick, supra.”
*49
We reaffirmed the position adopted in
State v. Atkinson, supra,
in
State v. Westbrook,
The facts in the case of
State v. Vann,
“He was discharged, and the ruling was sustained by this Court on appeal, Pearson, C.J., saying that, ‘as the jury was not impaneled and charged with the case, it was within the discretion of the court to allow the solicitor the benefit of a challenge for cause, so as to secure a jury indifferent as between the State and the prisoner.’ This rule of practice is well settled by the authorities. S. v. Jones,80 N.C. 415 ; S. v. Cunningham,72 N.C., 469 ; S. v. Green,95 N.C., 614 ; S. v. Ward, 39 Ves., 225. The rule really goes beyond this, for it is the right and duty of the court to see that a competent, fair, and impartial jury are impaneled, subject to the right of peremptory challenge by the prisoner; and in the discharge of this duty, it may stand aside a juror at any time before the jury are impaneled and charged with the case. S. v. Jones, supra; S. v. Boon, supra, and cases therein cited. The court, therefore, may act of its own motion, in furtherance of justice, and need not wait for a formal challenge, if a juror appears to be disqualified. ...”
Defendants rely principally on the case of
State v. Fuller,
“The discretionary power of the judge was confined to challenges for cause. He had no more authority to extend the time for making peremptory challenges beyond the limit fixed by the statute than he had to increase the number allowed to the State beyond four. The question of the proper interpretation of the language of the statute is one for this Court, and its meaning seems so plain as to require but little further discussion of this exception ...”
At the time Fuller was decided, the Revisal of 1905 of North Carolina provided that in capital cases peremptory challenges must be made before the juror is tendered to the prisoner. The 1967 General Assembly provided in General Statute 9-21 (b) that in all criminal cases “The State’s challenge, peremptory or for cause, must be made before the juror is tendered to the defendant.” (Emphasis supplied.)
Defendants argue that pursuant to the authority of Fuller and the present wording of G.S. 9-21 (b) it is error for the trial judge to permit the. Solicitor to reexamine and challenge a juror, either peremptorily or for cause, once that juror has been passed by the State and tendered to the defendant.
We note that under the same statutory provisions which existed when
Fuller
was decided this Court has approved the action of trial judges in allowing challenges for cause after the State has passed and tendered a prospective juror to the defendant.
State v. Green,
We think that instant case is distinguishable from
State v. Fuller, supra.
In
Fuller,
there was no ground for challenge for cause. Here there was ground for challenge for cause since
*51
the prospective juror was not willing to consider all the penalties provided by law, and was “irreparably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances which might be revealed in the course of the proceeding.”
State v. Anderson,
If the present case and Fuller were not distinguishable, and Fuller was interpreted to hold that under a statute similar to G.S. 9-21 (b) the trial judge was divested of his supervisory and discretionary powers to insure the selection of a fair, competent and impartial jury, we would be compelled by the forces of better reasoning and the overwhelming weight of authority to overrule that portion of Fuller so holding.
G.S. 9-21 (b) provides a procedure for the orderly selection of jurors. Its effect is to give to the defendant the last opportunity to exercise his right of challenge when the State had all pertinent information concerning the fitness and competency of the juror before he was tendered to the defendant. G.S. 9-21 (b) does not deprive the trial judge of his power to closely regulate and supervise the selection of a jury to the end that the defendant and the State be given the benefit of a trial by a fair and impartial jury.
We do not believe the court abused its discretion in allowing the State to challenge for cause this juror before she had been impaneled. The court demonstrated its fairness by giving additional peremptory challenges to each defendant who had previously passed the prospective juror before she was ultimately excused.
This assignment of error is overruled.
Defendants also assign as error the court’s refusal to permit them to examine prospective jurors successfully challenged by the State for cause because of their conscientious scruples against capital punishment.
During the process of selection of the jury, 218 jurors were examined. Upon being asked “Are your views such that you could not vote for a verdict which would result in the death penalty regardless of what the evidence was in the case ?” 71 of the jurors answered in the affirmative and were stood aside.
*52 As had been previously indicated, a juror may be successfully challenged for cause when he is “irreparably committed before the trial has begun to vote against the penalty of death.” State v. Anderson, supra; State v. Doss, supra; State v. West-brook, supra.
Any party to an action has a right to make inquiry as to the fitness or competency of any person to serve as a juror. G.S. 9-15 (a);
State v. Dawson,
“Although G.S. 9-15 (a) assures a defendant of the right to have due inquiry made as to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant. The trial judge, in his discretion, may decide which course to pursue in a particular case. If the court, when it conducts the questioning, declines to ask a question requested by the defendant’s counsel, an exception may be noted so that an appellate court can consider the propriety, pertinence and substance of such question. The procedure followed in .the present case avoided repetitive questioning without precluding or restricting any inquiry suggested and requested by defendants’ counsel. The procedure followed was not violative of G.S. 9-15 (a) or otherwise objectionable, and defendants have failed to show any prejudice on account thereof. . . .”
The answers elicited by the Solicitor concerning capital punishment were so unequivocal that challenge for cause was clearly proper. Any possibility of prejudice is negated by the fact that the verdict returned by the jury precluded the imposition of the death penalty.
Bumper v. North Carolina,
Defendants have failed to show abuse of discretion on the part of the trial judge or prejudice resulting from the procedure followed in the examination of prospective jurors.
This assignment of error is overruled.
*53 We have carefully examined the remaining assignments of error and find no prejudicial error.
The record reveals that the defendants, represented by able counsel, received a fair trial in which there was
No error.