258 N.C. 300 | N.C. | 1962
The defendant contends that although an appeal was noted to the order of Judge Stevens for a change of venue, no case on appeal has been certified. We deem it unnecessary to discuss the failure on the part of the State to perfect the appeal in the usual manner since we allowed the application for writ of certiorari. The record and its contents are before us. Under the provisions of the Constitution of North Carolina, Article IV, Section 8, this Court is empowered “to issue any remedial writ necessary to give it a general supervision and control over the proceedings of the inferior courts." S. v. Schlichter, 194 N.C. 277, 139 S.E. 448; S. v. Smith, 240 N.C. 631, 83 S.E. 2d 656; S v. Cochran, 230 N.C. 523, 53 S.E. 2d 663.
The statute, G.S. 1-84, is quite clear that a judge may order a copy of the record in civil or criminal actions removed to some adjacent
Likewise, under the provisions of G.S. 1-86, a judge in hearing a motion to remove, as provided in G.S. 1-184, may “on his own motion * insteaci 0,f making order of removal may cause as many jurors as he deems necessary to be summoned from any county in the same judicial district or in an adjoining district,” to serve as jurors in such action or actions. We hold that when Judge Morris entered the order directing that venire of jurors be drawn from Perquimans County to serve as jurors in the trial of these cases in Dare County, it was tantamount to a denial of the motion to remove the cases to another county for trial.
There is ample evidence on the record before us tending to show that Judge Stevens bad been informed that a special term of court had been called for Dare County to begin on 18 June 1962 for the trial of these cases and that a venire of sixty jurors had been drawn from Perquimans County to serve as jurors in said trial or trials. It appears that the attorneys for the defendant wrote the solicitor on 21 April 1962 and sent a copy of the letter to Judge Stevens at Warsaw, North Carolina, which letter among other things contained the following statements: “If this case cannot be tried at the regular term in May then June 18 is agreeable to us for the trial of the case. * I (one of the attorneys for the defendant) gather from your letter of the 20th that a special venire has already been drawn. I will inquire into this and, unless there has been some irregularity, will certainly not suggest the drawing of another one.”
There is nothing in the record before us to indicate that the attorneys for the defendant requested Judge Stevens to move these cases to Pasquotank County or that Judge Stevens heard any evidence with respect to any motion for removal or that he ever examined the affidavits filed before Judge Morris in the original hearing. Moreover, there was no exception entered to the order entered by Judge Morris or an appeal therefrom. Rutherford College v. Payne, 209 N.C. 792, 184 S.E. 827; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E. 2d 153.
This Court said in Oettinger v. Live Stock Co., 170 N.C. 152, 86 S.E. 957: “The defendant * * * by failing to except to the judge’s denial of the motion for removal and by failing to appeal, waived all rights for removal.”
In S. v. Smarr, 121 N.C. 669, 28 S.E. 549, the defendant filed an affidavit for removal. The court refused, and the 'defendant excepted. On appeal, this Court said: '“The Superior Court of the county in which the offense was committed had the sole jurisdiction to try the
An examination of our present statutes, G.S. 1-84 and 1-85, will reveal some changes in the wording thereof but not in legal effect. For instance, Code section 196 authorized the removal "if he (the judge) shall be satisfied that a fair trial cannot be had in said county.” This provision has been changed in the present statute to read, “if he (the judge) is of the opinion that a fair trial cannot be had in said county, after hearing all the testimony offered on either side by affidavits.” Section 197 of the Code provided, “the judge shall not order the removal of such action unless he shall be satisfied, after thorough examination of the evidence * * that the ends of justice demand it.” The present statute has been changed to read, “the judge shall order the removal of the action, if he is satisfied after thorough examination of the evidence * * * that the ends of justice demand it.”
The rule with respect to removal upon the grounds that the defendant cannot get a fair trial in the county where the action is pending, contemplates that affidavits for the removal must “set forth particularly in detail the ground of the application.” Gilliken v. Norcom, supra.
In the last cited case, Brogden, J., speaking for the Court, said: “The rule of law governing motions for removal of causes specified, is thus declared in Phillips v. Lentz, 83 N.C. 240: ‘The distinction seems to be where there are no facts stated in the affidavit as grounds for the removal, the ruling of the court below may be reviewed; but where there are facts set forth, their sufficiency rests in the discretion of the judge and his decision upon them is final,” citing authorities.
These oases ought to be tried without further unnecessary delay. They have been pending and -at issue since the October Criminal Term 1961 in Dare County. Therefore, we suggest that the proper authorites request a special term of the Superior Court of Dare County to try these cases and that an order be obtained for a venire of jurors from Perquimans County to serve as jurors in the trial of these cases.
Reversed.
