State v. Council

Olakk, J.

The Attorney-General moves to dismiss the petition to' rehear on the ground that by the uniform practice of the Court, observed from its beginning till now, petitions to rehear are not allowable in criminal actions.

An appeal to this Court is a right. Not so as to a petition to rehear (Herndon v. Insurance Co., 111 N. C., 384; Solomon v. Bates, 118 N. C., 321), which is an appeal from this Court to itself and only allowable ex necessitata when there is no other possible relief from its judgment. In criminal actions, there is the fullest power vested in the Executive not only to relieve from a judgment of this Court, as could be done by us upon a rehearing, but the facts can be inquired into as the Court could not do, and considerations of equity and of mercy may have a weight which can not be presented on a rehearing in a Court.

In State v. Jones, 69 N. C., 16 (for murder), it was held that this Court had no power to' rehear a criminal case, Reade, J., saying: “Neither the learned counsel for the prisoner nor the Attorney-General has been able to cite any authority showing that we have the power to rehear the case.” This has been uniformly followed ever since — as it had been up to that time — and this case is cited in State v. Starnes, 94 N. C., by Smith, C. J., who says (page 982): “N> such proposition in reference to criminal prosecutions has ever been made or entertained, so far as our investigations have gone, in this Court. The absence of a precedent (for we can not but suppose such application would have been made on behalf of convicted offenders, if it had been supposed that a power to grant them' resided in the appellate Court), is strong confirmatory evidence of what the law was understood to be by the profession.” The particular point before the Court inj State v. Starnes was the motion for a new trial for newly discovered evidence in the Supreme Court on a conviction for rape, which motion was denied in the language *513 above cited, and tbis bas been cited as authority (State v. Gooch, 94 N. C., 1008; State v. Starnes, 97 N. C., 423; State v. Rowe, 98 N. C., 630), and bas been observed, without filing an opinion, uniformly since, both as to new trials, for newly discovered evidence and rehearings, both of which are allowed (but with certain well-defined restrictions) in civil actions, but never on the criminal side of the docket. It would indeed be an anomaly if the Court can not grant a new trial in criminal cases for newly discovered evidence, but could grant a rehearing. That the practice in this matter has been unbroken for nearly one hundred years is of itself, as the Court has already observed — speaking through Mr. Justice Reade and Chief Justice Smith — a strong argument why we should follow the precedents.

Petitions to rehear were first authorized, in the present terms of the statute at least. Rev. Code, Chap. 33, sec. 1. That with full knowledge of the construction placed upon that provision by the uniform practice of the Court and the decision in State v. Jones, supra, it was repeated in the same terms in The Code, sec. 966, it is clear that the profession and the General Assembly and the Code Commission acquiesced in that construction. If, however, the Court were not bound by a century of legislative acquiescence, as well as judicial construction, and, viewed as a new question, the Court might well pause assuming a jurisdiction over the strenuous applications of defendants in criminal actions after the highest Court has decided against them. It is the concurrent testimony of successive Governors that such applications have been the most troublesome matters they have had to deal with, yet they have means of investigation and examination and a leisure which is denied to this Court.

However, legislation has now clearly deprived us of the power, if we had ever possessed it, of granting rehearings in criminal actions. By the Laws of 1887, Chap. 192, se'e.3, *514 amending Tbe Code, sec. 962, it is provided: “In all cases of affirmance of a sentence for a capital felony, tbe Clerk of tbe Supreme Court at tbe same time that tbe decision of tbe Supreme Court is certified down to tbe Superior Court, shall send a duplicate thereof to tbe Governor, who shall immediately issue bis warrant under tbe Great Seal of tbe State to tbe Sheriff of tbe county in which tbe appellant was sentenced, directing him to execute tbe death penalty on a day specified in said warrant, not less than thirty days from the date of said warrant; but this shall not deprive tbe Governor of tbe power to pardon or reprieve tbe defendant, or to commute tbe sentence.”

By virtue of Chapter 41, Laws 1887, and Rule 48 of this Court, opinions are certified down on tbe first Monday in each month, provided they shall have been on file ten days. As opinions are usually filed on Tuesdays, they remain not less than thirteen days and not more than forty-two days in fieri, and, in that time, if there is error (and in criminal cases it should be scrutinized in that time) it can be observed and tbe matter called to tbe attention of tbe Court, which, in such cases, on sufficient cause. shown, has more than once called up tbe opinion for reconsideration. If this is not done, tbe remedy is by application to tbe Governor. After tbe opinion is certified to tbe Governor for execution, tbe matter is out of tbe jurisdiction of tbe Judicial Department, for be is required to issue his warrant immediately to tbe Sheriff. One Judge of this Court can not, upon an application to rehear, issue bis mandamus or bis injunction to restrain tbe Governor from proceeding as tbe statute has expressly directed him to do, upon reception by him, of tbe certified opinion of tbe Court. In this very case, tbe suspension of execution has been by tbe courtesy of tbe Governor in granting a respite under bis prerogative, and not by virtue of tbe order of a member of this Court. That a Judge of -- *515 tbis Court could not issue bis order to tbe Governor commanding bim not to proceed, is conclusive tbat we bave no power over tbe matter after tbe certificate of tbe opinion of tbis Court bas gone to bim. Tbe matter bas tben gone into bis bands, and tbe public bistory of tbis case shows tbat tbe Executive bas fully and carefully investigated all claims made for leniency. Eurtber action is left by tbe Constitution and laws with bim. No criticism is intended upon tbe action of tbe member of tbe Court wbo granted tbe order for a- rebearing, for it was desirable tbat tbis point should be squarely presented and finally set at rest, which might as well be done in tbis case as in another. .

: Tbe same is true as to convictions for les'ser offenses, for the same section (section 3, Chap. 192, Laws 1887) provides:; “In criminal cases tbe Clerk of tbe Superior Court, in all cases where tbe judgment bas been affirmed (except where tbe conviction is of a capital felony) shall forthwith, on receipt of tbe certificate of tbe opinion of tbe Supreme Court, notify tbe Sheriff, wbo shall proceed to execute tbe sentence appealed from.” Thus showing tbe evident clearly expressed intention tbat tbe matter should tben be in tbe bands of tbe Executive Department, and execution of tbe judgment proceed without interruption, unless by executive clemency. It is otherwise as to civil matters, as to . which, by tbe same statute, no action can be taken till a new , judgment is rendered by tbe Court below.

Counsel for tbe prisoner seem to think it a grievance tbat a per curiam, decision, instead of an opinion, was filed in this case, 128 N. C., 616. But if tbe General Assembly could still require tbe Court to file opinions (which it can not do since the Constitution of 1868, Horton v. Green, 104 N. C., 400; Herndon v. Ins. Co., 111 N. C., 384), tbe same ; authority has relieved the Court of tbe former statute, by enacting (Laws 1893, Chap. 379, sec. 5) : “The Supreme Court i *516 Justices shall not be required to write their opinions in full except in cases in which they deem it necessary.”

As the Court had already held, in the cases above cited, that the General Assembly, under the present Constitution had no control over such matters, this has only a persuasive effect on us as the opinion of a co-ordinate branch that unnecessary opinions had been filed, taxing alike the public treasury and the time of the profession. ' In deciding what cases shall be disposed of by a per curium decision without an opinion, we have always been guided, not by the importance .or unimportance of the matter at issue, but by considering whether or not the propositions of law presented had not been already frequently decided. Accordingly, we find that in other States appeals in capital cases , have not infrequently gone off on a per curiam decision without opinion, and in some States it is always done when the judgment is affirmed, and in England no appeal has ever been allowed in criminal cases, the remedy being by application for executive clemency.

When the appeal was heard at last term, the point most pressed was the motion for a new trial for newly discovered evidence. It had been well settled that such motions in criminal cases would not be heard in this'Court (State v. Starnes, supra), and that even in civil cases such motions would bé disposed of by per curiam order. Herndon v. Railroad, 121 N. C., 499; Brown v. Mitchell, 102 N. C., 347; Ferebee v. Pritchard, 112 N. C., 83, and many other cases, and the same course was necessarily pursued in this case.

Another point was made, though properly not much relied on, that one of the jurors had not been properly sworn. This-has been more pressed on this argument, but it was presented and considered and decided by us before. . It was so well settled that if there was such irregularity, it was cured by not objecting in apt time, that we deemed no repetition of adjú- *517 dications necessary. Tbe juror was sworn in presence of prisoner and bis counsel, and to let bim acquiesce in tbe manner in wbicb tbe oatb was taken, and tben object after verdict, would simply make a trial not a decision upon tbe merits, but a series of pitfalls for tbe State. Not having spoken when be was called upon to speak, tbe prisoner should not be beard after tbe verdict has gone against bim. State v. Boone, 82 N. C., 637; State v. Patrick, 48 N. C., 443; Briggs v. Byrd, 34 N. C., 377; State v. Ward, 9 N. C., 443. Even where a juror is incompetent because a minor (State v. Lambert, 93 N. C., 618), or an atheist (State v. Davis, 80 N. C., 412), or not a freeholder (State v. Crawford, 3 N. C., 485), or a nonresident (State v. White, 68 N. C., 158), or related (Baxter v. Wilson, 95 N. C., 137), and these objections are not discovered until after verdict, setting aside tbe verdict, rests in tbe discretion of tbe trial Judge. State v. Lambert, supra, and many cases there cited. Eor a stronger reason, this must be so when tbe objection is merely to tbe manner in which a competent juror is sworn, when tbe oatb is taken in tbe prisoner’s presence who makes no objection. This is like tbe case of incompetent evidence admitted without objection, and tbe like. In State v. Gee, 92 N. C., 756, where a witness was not sworn at all, tbe Court held that this was not ground of objection after verdict.

Indeed, it appears from tbe affidavit of tbe Clerk of tbe Court that tbe juror was sworn in tbe proper manner, and tbe manner of bis oatb taken before tbe Judge afterwards, indicates as much. Besides, there is no finding of fact by tbe Judge as to tbe manner in wbicb tbe oatb was taken (State v. DeGraff, 113 N. C., 689), wbicb tbe appellant should have asked for if he wished tbe action of tbe Judge reviewed. Whitehead v. Hale, 118 N. C., 601.

Though tbe petition to rehear must be dismissed, we have discussed tbe objection, as has sometimes been done when *518 an appeal is dismissed. State v. Wylde, 110 N. C., 500, and cases there cited.

Petition Dismissed.