STATE v. MOORE

Indictment for Murder — Homicide — Jury, Selection of Special Venire — Submitting to Verdict for Manslaughter — Appeal — Harmless Error.

1. Where, on trial for murder, the jurors were selected for a special venire summoned from the general jury list irrespective of their qualifications as freeholders, instead of from a venire of freeholders only, as required by sections 1738 and 1739 of The Code, but none but qualified freeholders were empanelled, and there was no challenge to the array: Held, that the defendant was not prejudiced by such method of summoning the jurors.

2. Where a prisoner indicted and on trial for murder agreed that the jury should return a verdict of manslaughter, which was done, and the defendant appealed, assigning as error the exclusion of certain evidence: Held, that the submission to the verdict of manslaughter was an acknowledgment and confession of the facts which constituted the crime, and an appeal from the judgment thereon cannot bring into question the regularity and correctness of the proceedings.

MONTGOMERY, J.

The prisoner was indicted for murder and tried in the county of Halifax in the Circuit Criminal Court. In cases where a Judge of the Superior Court issues a special writ of venire facias only freeholders can be summoned. The Code, secs. 1738, 1739. It was argued here for the defendant that he was entitled to a new (567) trial upon the ground that the jurors who were the triers of the indictment against him were selected from a special venire ordered by the Judge and summoned by the sheriff from the general jury list of the county, irrespective of their qualifications as freeholders. The defendant's counsel, while admitting that chapter 156, Laws 1895, which created the Circuit Criminal Court, and provided a method of procuring a special venire in cases of capital felonies, was followed in summoning the special venire, yet insisted that the act was prejudicial to defendant's rights, in that it denied to persons indicted for capital felonies in the Circuit Criminal Court the same and equal protection which was afforded to persons indicted and tried for the same offences in the Superior Courts, and for that reason was contrary to that portion of section 1 of Art. XIV of the Amendments to the Constitution of the United States, which declares that no State in the Union shall "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws." Authorities were cited to sustain this position.

It is not necessary for us to make a decision upon the question raised by the argument. It might be that the defendant would have to be sustained in his contention if he had been compelled to take a single juror who was not a freeholder. But such does not appear to have been the case. It is true that several jurors who were not freeholders were tendered by the State, and that upon objection by the defendant, for cause, the objection was not sustained by the Court. But it appears that all such were rejected by the peremptory challenges of the defendant and that a jury was selected before he had exhausted his peremptory (568) challenges. The jury, so far as we can seen from the record, possessed all the qualifications required by the general law, sections 1738, 1739 of The Code, in cases where they are selected from a special venire, and if some of them who were summoned by the sheriff did not possess the proper qualifications they did not try this case, and the defendant was therefore not prejudiced by such order of the judge and such action of the sheriff. There was no challenge to the array. The exceptions taken to the refusal of his Honor to admit certain testimony offered by the defendant need not be considered, for the reason that the verdict of the jury returned on the defendant's agreement that they should find him guilty of manslaughter is, in law, an acknowledgment and confession of the facts which constituted the crime, and an appeal from the judgment rendered thereon cannot bring into question the regularity and correctness of the proceedings. S. v. Warren, 113 N.C. 683.

No error.

Cited: S. v. Branner, 149 N.C. 563.