28 S.E. 549 | N.C. | 1897
The motion to quash because one of the grand jurors had a suit "pending" in said court was properly disallowed. The disqualification applies only to a juror who has a "suit pending and at issue" when the juror is drawn. Code, sec. 1728. The object is to disqualify one who has a suit which is triable at the term for which he is drawn to serve as a juror. If the action should come to an issue at such term it would not stand for trial "till the term of the court next ensuing such joinder of issue." Code, sec. 400. But here the juror's suit was not at issue when drawn, nor did it even come to issue at the term at which he served, for he did not file his answer at that term, but was granted 60 days' leave to file it. Hodges v.Lassiter,
Nor was there any force in the objection that the jury list was not revised (owing to delay in receiving the Laws of 1897) on the first Monday in June, but at the meeting of the commissioners on the first Monday in July or August. It does not appear that the prisoner was in any wise prejudiced thereby, and such requirements as to the manner or time of drawing jurors have always been held directory in the absence of proof of bad faith or corruption on the part of the officers charged with that duty.S. v. Stanton,
The prisoner filed an affidavit for removal. The court refused to remove, and the prisoner excepted. The Superior Court of the county in which the offense was committed had the sole jurisdiction to try the offense unless the cause is removed therefrom, and the authority to order such removal is granted and restricted by the Code, secs. 196, 197. (671) Section 196 provides that, in all civil and criminal actions upon affidavits on behalf of either party that justice cannot be obtained in the county in which the action is pending, "the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial, if he shall be satisfied that a fair trial cannot be had in said county." Section 197 says that it shall be competent for the other side to offer counter-affidavits, and "the judge shall not order the removal of any such action unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it." It does not appear whether the State offered any counter-affidavits. The solicitor may not have deemed it necessary. In a matter of this kind the prisoner naturally states his ground for removal in as strong a light as possible, but the judge is not bound by the recitals in his affidavits, though no counter-affidavit is filed, but is to make "thorough examination of evidence." We do not know whether he heard oral testimony or what knowledge he had that prevented him from believing the averment that a fair trial could not be had in that county. He knew the truth as to the surroundings and circumstances far better than it can be known by us from an ex parte affidavit, and the statute forbade him to remove unless "he was satisfied that the ends of justice required it." As he was not, there is no authority given to the appellate court to hold that he was. It has always been held that the granting or refusing to grant an order of removal is a discretion which the law-making power has vested in the trial judge and that his action is not reviewable. S. v. Hall,
The other exception that the special venire was summoned by the sheriff, as prescribed by the Code, sec. 1738, and not drawn out of the box, is equally untenable. The statute (Code, sec. 1739) makes the latter mode purely discretionary. S. v. Stanton, supra; S. v. Brogden,
Cited: Benton v. R. R.,