Indictment for Murder — Practice in Criminal Cases — Withdrawing Jurors — Mistrial — Jury.
1. No appeal lies in a criminal action until after the rendition of final judgment.
2. In the trial of a capital felony the judge may, for sufficient cause, discharge the jury and hold the prisoner for a new trial.
3. A less number than twelve men is not a lawful jury for the trial of an indictment, and a trial by jury in a criminal action cannot be waived by the accused.
4. Where, after the impaneling of a jury in the trial of an indictment for murder and the beginning of testimony, a juror became too ill to continue as such, and the defendant offered to proceed with a jury of eleven men, or to select another juror either from the special venire, which had not been exhausted, but had been discharged, or from the bystanders, and the solicitor declined all the suggestions, it was the duty of the judge to direct a mistrial and hold the prisoner.
5. Semble, it might in such case have been permissible for the judge to call a new juror and begin the trial anew, but whether he should do so was entirely within his discretion.
MACRAE, J.
No appeal lies in a criminal action until after the rendition of final judgment in the cause. S. v. Twiggs, 90 N.C. 685. If the case were properly before us, as on an application for a certiorari, we should find no ground for granting the writ, for it has long been settled that, in a trial for a capital felony, for sufficient cause the judge may discharge the jury and hold the prisoner for another trial. In which case it is his duty to find the facts and set them out in the record, so that his conclusion as to the matter of law arising from the facts may be reviewed by this court. S. v. Jefferson, 74 N.C. 309. All this his Honor did, and it will serve no good purpose for us to do more than to say that, upon the facts found, it was the duty of his Honor to direct a mistrial and hold the prisoner. The jury provided by law for the trial of indictments is composed of twelve men; a less number is not a jury, and a trial by jury in a criminal action cannot be waived (807) by the accused. S. v. Stewart, 89 N.C. 563. While it might have been permissible to call another juror in place of the one who was sick, and begin the trial anew, it was a matter in the control of the presiding judge, who we doubt not for good reasons pursued the regular course.
Appeal dismissed.
Cited: Hall v. Hall, 131 N.C. 187; S. v. Tyson, 138 N.C. 629; S. v. Dry, 152 N.C. 814; S. v. Rogers, 162 N.C. 659, 665; S. v. Ford, 168 N.C. 167.