Opinion
August Term, 1849.
Upon the trial of an indictment for an affray, after the jury had returned into court and intimated an intention to acquit one of the defendants, but had not announced their verdict, the court told them that; if they believed the evidence, both of the defendants were guilty; whereupon the solicitor for the state directed the clerk to enter a verdict of guilty as to both, which was done, and the jury, being asked if that was their verdict, made no direct assent, but by a nod from each of them: Held, that this proceeding was so irregular and contrary to the established mode, that the judgment should be set aside.
APPEAL from the Superior Court of Law of LINCOLN, at Fall Term, 1848, Moore, J., presiding.
This was an indictment for an affray. After the court had charged the jury, they retired, and, remaining out for some considerable time, at the request of the solicitor, they were sent for by the court. After the jury returned the court charged them that, although Jones (the other defendant) had first commenced a battery upon Shule, yet that, if the jury believed the evidence, the defendant Shule was also guilty. After this charge had been given by the court, one of the Jurors remarked that they had agreed to convict Jones and were about to acquit Shule, which remark was not contradicted nor assented to by any of the other jurors. Whereupon the court gave them a further charge, and at the conclusion of it remarked that the jury could retire, if they thought proper to do so. The jury remained together a few moments in the courtroom, apparently in consultation. The solicitor for the State directed the clerk to enter a verdict of guilty as to both defendants. When the clerk had written out the verdict, the jury were asked to attend to the verdict which was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury, (154) and the jurors were then requested by the solicitor to make it known if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent, but, on the contrary, by a nod, which appeared to be made by each juror, expressed their unanimous assent. From the judgment upon this verdict the defendants appealed.
Attorney-General for the State.
No counsel for defendants.
We think there was error in the mode of conducting the trial. There must be a venire de novo. There was a departure from the established mode of proceeding, and the wisest policy is to check innovation at once; particularly as, in this case, it concerns the "trial by jury,"which the Bill of Rights declares "ought to remain sacred and inviolable." The error complained of is that before the jury had announced their verdict, and, in fact, after they had intimated an intention to acquit the defendant Shule, the court allowed the clerk to be directed to enter a verdict finding him guilty; and after the verdict was so entered, allowed the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk; no juror expressed his dissent, but by a nod, which appeared to be made by each juror, expressed their unanimous assent. The innovation is that, instead of permitting the jury to give their verdict, the court allows a verdict to be entered for them, such as it is to be presumed the court thinks they ought to render, and then they are asked if any of them disagree to it. Thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the court.
The rules of evidence do not allow a leading question (155) to be put to a witness; if a party should be allowed to put a question to his witness, and, before it is answered by the witness, to suggest an answer and ask the witness if it is so — upon exception, this would be held to be error, and a venire de novo be ordered. The reason is that a leading question suggests to the witness how the party wishes him to answer; tempts him to commit perjury, if he is corrupt, or at all events is calculated to take him by surprise, and sometimes to get an answer from him which he would not otherwise have made. There are the same objections to leading juries as to leading witnesses, and, in fact, those apply with more force. The judge is prohibited from intimating to the jury his opinion upon a question of fact. The attendant circumstances in this case gave as clear an intimation of opinion as could be imagined.
When a plaintiff fails to make out his case, the judge may say to the jury, if all the evidence offered be true, the plaintiff has not made out a case, and direct a verdict to be entered for the defendant, unless the plaintiff chooses to submit to a nonsuit.
It is in effect a demurrer to the evidence. The plaintiff has no right to complain, for in reviewing the question of law he has the benefit of the supposition that the evidence offered by him and the inferences of fact are all true. So when the plaintiff's case is admitted, the whole question turns upon the defense attempted to be set up. If, taking the facts to be as contended for by the defendant, the court is of opinion that he has made out no answer to the action, it is proper and saves time for the court to direct the verdict to be entered for the plaintiff.
The defendant is not prejudiced, because, upon appeal, the question will be presented in the most favorable point of view for him.
But the present case is not like either of these, for the (156) State had not made out a case, unless the State's witness was believed; and the credibility of witnesses must be passed on exclusively by the jury. It is true, from the cases made out, there could be but little room to doubt that both defendants were guilty, and the wonder is why the jury should have hesitated about convicting both. Still that was a matter for the jury, and its being a plain case, although it accounts for, does not legalize this novel mode in entering a verdict. If allowed because this is a plain case, it may be extended to cases that are not plain, and become a positive mischief.
The judgment must be reversed and a venire de novo issued.
PER CURIAM. Ordered to be certified accordingly.
Cited: Nash v. Morton, 48 N.C. 7; S. v. Whit, 50 N.C. 228; S. v. Barber, 89 N.C. 526; S. v. Riley, 113 N.C. 649; Riggan v. Sledge, 116 N.C. 93; Burrus v. Ins. co., 121 N.C. 65; Bank v. School Com., ib., 109; Eller v. Church, ib., 271; White v. R. R., ib., 489; Wood v. Bartholomew, 122 N.C. 186; Mfg. Co. v. R. R., ib., 886; Cable v. R. R., ib., 896, 898; Cox v. R. R., 123 N.C. 607; Gates v. Max, 125 N.C. 143; S. v. Simmons, 143 N.C. 619.