State v. . Harper

Smith, C. J. (after stating the case.) In reference to the first exception, it confronts the fact that the polling shows the assent of each juror to the verdict given in making it unanimous, and the Judge who ascertains the fact upon which a reviewing Court must proceed, finds that the unanimity was not brought about by an involuntary yielding of the convictions of the few to the many, notwithstanding the apparent assent in the jury room, for immediately ■thereupon, two.of the three jurors, upon the vote taken, adhered to their first opinion. We have had some, hesitancy in sustaining the refusal of the Judge to hear the witness, by whom it was proposed to> .prove that a part of the jury were “improperly approached *764 ■and spoken to about the case,” but upon a more careful consideration we cannot find any reasonable error in his action. The proof offered is in a vague and indefinite form, pointing out no specific act done or words spoken to show a tampering, or that any juror was influenced or heeded what was •done or said, and the setting aside of a suspicious verdict rests in the discretion of the Judge where nothing more appears, and there is not a legal right denied. In the words of Pearson, J., in State v. Tilghman, 11 Ired., 513, “ perhaps it would have been well had his Honor, in his discretion, set aside the verdict and given a new trial as a rebuke to the jury, and an assertion of the principle that trials must not only be fair, but above suspicion. This, however, was a matter of discretion, which we have no right to revise.” He proceeds to say in this connection, the inquiry to be, “was the misconduct and irregularities such, as to vitiate the verdict, to make it in law null and void and no verdict?” The subject is elaborately discussed by C. J. Ruffin, and Gaston, J., dissenting, in State v. Miller, 1 D. & B., 500. The same doctrine is held in State v. Morris, 84 N. C., 756, and in State v. Brittain, 89 N. C., 481. The refusal to entertain a proposition and to admit testimony in its support, expressed in such loose terms and without indicating any fact to prove a tampering, were surely within the province of the Judge. If a juror was “improperly approached” and something said to him about the verdict, this is entirely consistent with the regular and proper action of the juror, and may have been unheeded by him in arriving at his conclusion as to the defendant’s guilt. It is true the record states that the Judge, in his discretion, “refused to hear any further testimony,” that is, of the kind that had just been rejected, couched in such general terms and not to prove the fact *765 wherein the tampering consisted, so as to enable him to-judge of their tendency and effect in guiding the exercise of' his discretion in the premises. The third and fourth grounds are "untenable, and have been so adjudged in several cases (State v. Morris, supra; State v. Brittain, supra, and others), inasmuch as though present, the officer had no conversation on the subject of the-deliberations of the jury; nor, as the case states, was there-any suggestion to the contrary. The cases cited are on indictments for capital felonies, in regard to which more rigid restraints are put upon jurors, while more control is exercised by the Court and greater-freedom tolerated than in trials for subordinate felonies and. misdemeanors. There is no error. Affirmed.