Opinion
(September Term, 1892.)
Special Venire — Dying Declarations.
1. It is in the discretion of the trial judge to order a special venire in capital cases and determine its number, which he may likewise change by another order.
2. The practice of drawing the venire from the box is commended.
3. The dying declarations are admissible in evidence.
INDICTMENT for murder, tried at the September Term, 1892, of WAYNE, before Bryan, J.
Attorney-General for the State.
No counsel for defendant.
The defendant pleaded not guilty, and the court ordered a (657) special venire of two hundred to be drawn from the jury box. This order was made on motion of the solicitor for a venire of one hundred and fifty.
BOX NO. 1 was exhausted when one hundred and thirty-five were drawn out, and on motion of the solicitor, the order was amended so as to call for only that number. A jury was obtained before the prisoner exhausted his special challenges. The court found, upon sufficient evidence, that the deceased's dying declarations were made under apprehension of impending dissolution and were admissible. Defendant excepted and appealed.
It rests in the discretion of the trial judge to order a special venire in capital cases, and like wise determine its number. The Code, sec. 1738. It is equally in his discretion subsequently to amend the order so as to increase or decrease the number of such venire. In this case certainly the prisoner had no cause to complain, as the jury was obtained from the regular panel and the reduced venire without exhausting the prisoner's peremptory challenges. S. v. Hensley, 94 N.C. 1021; S. v. Pritchett, 106 N.C. 667. But had the venire proved insufficient, the statute (The Code, sec. 1739) provides that the judge, in his discretion, could have ordered a further venire to be drawn from the box, or summoned by the sheriff.
The practice of drawing the special venire from the box is one to be commended and is favored by the courts. It is a wise and safe course which trial courts will usually do well to observe. The act authorizing it (The Code, sec. 1739) was passed by the Legislature to remove the occasion for scandals which, at times, had crept into the administration of justice in trials for capital offenses. There may be instances in which, in the exercise of a wise discretion, the (658) court need not observe it; hence, the act was not made mandatory.
We see no ground for the objection to the admission of the dying declarations of the deceased. The ruling of the judge was fully justified by the evidence. S. v. Williams, 67 N.C. 12; S. v. Mills, 91 N.C. 581.
NO ERROR.
Cited: S. v. Whitson, post, 697; S. v. Whitt, 113 N.C. 717; S. v. Stanton, 118 N.C. 1184; S. v. Smarr, 121 N.C. 674; S. v. Register, 133 N.C. 750; Ives v. R. R., 142 N.C. 137; S. v. Laughter, 159 N.C. 490; S. v. Carroll, 176 N.C. 731; S. v. Lewis, 177 N.C. 558.