State v. . Barkley

CoNNOR, J. The indictment upon which the defendant in this action was arraigned was returned by the grand jury, which was drawn, sworn and empaneled on the first day of November Term, 1929, of the Superior Court of Pasquotank County. The indictment was returned by the grand jury during the first week of said term. Defendant’s first assignment of error on his appeal to this Court is based on his exception to the order of the trial judge denying his motion that the indictment be quashed, for that Charles E. Sanders, Jr., who was sworn and who served ,as a member of the grand jury by which the indictment was returned, was not a regular juror for the first week of the November Term, 1929, of the Superior Court of Pasquotank County and for that he was not drawn as a grand juror for said term. This *350 motion was made before tbe jury was sworn and empaneled to try tbe issue between tbe State and tbe defendant. It was made on defendant’s arraignment, and before be entered a plea to tbe indictment. Tbe motion was, therefore, made in apt time. It is provided by statute in tbis State tba.t “all exceptions to grand jurors for or on account of tbeir disqualifications shall be taken before tbe jury is sworn and empaneled to try tbe issue, by motion to quash tbe indictment, and if not so taken, tbe same shall be deemed to be waived.” C. S., 2335. In S. v. Paramore, 146 N. C., 604, 60 S. E., 502, it w.as held that tbe motion to quash tbe indictment in that case, made upon defendant’s arraignment, and before be entered a plea to tbe indictment, was made in apt time. In that case tbe indictment w.as quashed because one of tbe members of tbe grand jury by which it was returned, was not qualified to serve as a grand juror at tbe term of tbe court at which tbe indictment was returned. Upon tbe bearing of defendant’s motion in tbe instant case, tbe trial judge found tbe facts and concluded therefrom that Charles E. Sanders, Jr., was duly qualified to serve as a grand juror during tbe first week of said term. Tbe motion was denied, and defendant duly excepted. Tbe regular jurors for tbe November Term, 1929, of the Superior Court of Pasquotank County were drawn by tbe board of commissioners of said county in accordance with tbe provisions of tbe statute. O. S., 2314. As required by statute, some of said jurors were drawn to serve during tbe first week and others were drawn to serve during tbe second week of said term. Among tbe jurors drawn to serve during tbe first week was Charles E. Sanders; be, however, was not summoned, and did not attend during tbe said first week, for tbe reason that be was absent from tbe State. Among tbe jurors drawn to serve during tbe second week was Charles E. Sanders, Jr.; be was duly summoned by tbe sheriff to attend and serve as a juror during tbe second week. When tbe court convened on tbe first day of tbe term, Charles E. Sanders, Jr., attended. He was present in tbe court room when tbe names of regular jurors who were drawn to serve as grand jurors, were called. Tbe name of Charles E. Sanders was drawn as a grand juror; when bis name was called be did not answer. Charles E. Sanders, Jr., answered, and went into tbe jury box. He was sworn and served on tbe grand jury during tbe term until tbe grand jury was discharged. He was present and participated as a member of tbe grand jury when tbe bill of indictment in tbis action was acted upon by tbe grand jury and returned as a “true bill.” When it is provided by statute that a regular term of tbe Superior Court to be held in tbeir county shall continue for more than one week, tbe board of commissioners are required by statute to draw jurors for *351 each week of the term. When jurors have served for the week for which they were drawn and summoned, the statute requires that they shall be discharged by the judge. Ordinarily, grand jurors are chosen from the regular jurors for the first week, in the manner provided by statute. C. S., 2333. It has been held, however, that where the court did not convene.until the beginning of the second week, because of the absence of the judge assigned to hold the term, during the first week, grand jurors may be chosen from the regular jurors for the second week. S. v. Wood, 175 N. C., 809, 95 S. E., 1050. No person, however, is qualified to serve as .a, grand juror who is not a regular juror for the week during which the grand jury is drawn. Charles E. Sanders, Jr., was not drawn by the board of commissioners or summoned by the sheriff as a regular juror for the first week of the November Term, 1929, of the Superior Court of Pasquotank County, he was, therefore, not qualified to serve as ,a. grand juror at said term. Indeed, Charles E. Sanders, Jr., was not drawn as a grand juror in accordance with the requirements of the statute. C. S., 2333. No scroll of paper on which his name was written was placed in a box or ha.t, and drawn therefrom by a child under the age of ten years. Charles E. Sanders, Jr., although qualified to serve as a regular juror during the second week of the term, was not qualified to serve .as such juror during the first week. He was not qualified to serve as a grand juror at the time he served as such. In S. v. Perry, 122 N. C., 1018, 29 S. E., 384, it is held that the competency of a person to serve as a grand juror depends upon his qualifications at the time he serves, and not upon his qualifications at some other time. There was error in holding that Charles E. Sanders, Jr., was duly qualified to serve as a grand juror during the first week of the November Term, 1929, of the Superior Court of Pasquotank County. As Charles E. Sanders, Jr., was not qualified to serve .as a member of the grand jury by which the indictment in this action was returned, and as notwithstanding his disqualification, he was present at and participated in the deliberations of the grand jury which resulted in the return of the indictment, it must be held, in accordance with authoritative decisions of this Court, that there was error in the denial of defendant’s motion that the indictment be quashed. S. v. Paramore, 146 N. C., 605, 60 S. E., 502; S. v. Haywood, 94 N. C., 847; S. v. Watson, 86 N. C., 624; S. v. Smith, 80 N. C., 410; S. v. Baldwin, 80 N. C., 390. In the last cited case it is said: “It is settled that the defendant, as indeed every person accused of a violation of the criminal law of the State, has the right not to be put to a public trial except on a bill of indictment preferred by a grand jury composed of persons qualified as by statute prescribed. If there be a defect in the .accusing body, it is the right of the party indicted, by plea in abatement or by motion to quash, *352 to avail himself of such defect; but it is required to be exercised at the earliest opportunity after bill found, which must be upon the arraignment when the party is first called upon to answer. S. v. Griffice, 74 N. C., 316; S. v. Haywood, 73 N. C., 437.” The order denying defendant’s motion that the indictment be quashed is reversed. The motion should have been allowed. There was Error.