STATE
v.
John Bangle CORL.
No. 514.
Supreme Court of North Carolina.
May 6, 1959.*616 Malcolm B. Seawell, Atty. Gen., and Lucius W. Pullen, Asst. Atty. Gen., for the State.
Robert L. Warren, Concord, for defendant, appellant.
PARKER, Justice.
After the jury was impaneled to try these cases, defendant challenged "the array on the grounds that eleven of the jurors at present in the panel were present in court on the morning of this date, at which time the defendant now on trial was being tried on two charges, one of speeding and one of driving after his license was revoked, and that such jurors heard the testimony in these cases and also heard read a record of the Department of Motor Vehicles which was admitted in evidence." To the denial of the challenge, defendant excepted, and assigns this as his assignment of error Number One.
To constitute a ground for challenge to the array, the objection must go to the whole array or panel, and not merely to individuals upon it. No objection lies to the array or panel because some persons are wrongfully on it, since they may be excluded upon their examination on the voir dire. State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613; State v. Dixon, 215 N.C. 438, 2 S.E.2d 371; State v. Levy, 187 N.C. 581, 122 S.E. 386; 50 C.J.S. Juries § 262; 31 Am.Jur., Jury, Sections 105 and 106.
The challenge to the array came after defendant had pleaded Not Guilty, and after the jury was impaneled. This Court said in State v. Banner, 149 N.C. 519, 63 S.E. 84, 85: "The motion to quash and the challenge to the array came too late, after entry of plea of `not guilty.'" "Challenges to the array or panel should be made before challenges to the polls, and, as a general rule, before the jury is sworn." 31 Am.Jur., Jury, Section 109. See 50 C.J. S. Juries § 263.
In State v. Levy, supra [187 N.C. 581, 122 S.E. 388], it is said: "In State v. Speaks, 94 N.C. 865, at page 873, it was said that `A challenge to the array can only be taken when there is partiality or misconduct in the sheriff, or some irregularity in making out the list.'"
*617 This is said in 50 C.J.S. Juries § 262, p. 1022: "The existence of various facts and circumstances, or the happening of various occurrences, have been held not to constitute grounds for challenge to the array or motion to quash the venire, such as * * presence of jurors at other trials, previous service of jurors in other cases * * *."
Defendant challenged the array, but offered no evidence. In Frazier v. United States, 335 U.S. 497, 69 S. Ct. 201, 205, 93 L. Ed. 187, rehearing denied 336 U.S. 907, 69 S. Ct. 488, 93 L. Ed. 1072, there was a challenge to the array, and in respect thereto the Court said: "I. The method of selecting the panel.Apart from the objection that this challenge came too late, cf. Agnew v. United States, 165 U.S. 36, 17 S. Ct. 235, 41 L. Ed. 624, it is without merit. It consists exclusively of counsel's statements, unsworn and unsupported by any proof or offer of proof. The Government did not explicitly deny those statements. But it was under no necessity to do so. The burden was upon the petitioner as moving party `to introduce, or to offer, distinct evidence in support of the motion.' (Citing authorities.)"
By virtue of G.S. § 15-163, defendant had the right to challenge peremptorily, and without showing cause, six jurors. There is nothing in the Record to indicate that defendant excused any juror under the provisions of this statute. For all the Record shows, defendant may have had unused six peremptory challenges, when he accepted the jury, and it was impaneled. "It is well settled that the defendant cannot object to the acceptance of a juror, so long as he has not exhausted his peremptory challenges before the panel is completed." State v. Dixon, supra [215 N.C. 438, 2 S.E.2d 372].
There is nothing in the Record to indicate that defendant challenged any juror for cause, e. g., that he had formed and expressed an opinion unfavorable to defendant, and that the court improperly refused his challenge to a juror for cause.
The court properly denied defendant's challenge to the array.
The assignments of error in respect to the court permitting the State to offer in evidence that part, and only that part, of a certified copy under seal of the official record of the Drivers License Division of the North Carolina Department of Motor Vehicles, showing that defendant's operator's license to operate an automobile was revoked, and such revocation was in effect on 27 September 1958, are overruled on authority of the opinion written for the Court by Denny, J., in State v. Corl, N.C., 108 S.E.2d 608.
The assignments of error to the denial of defendant's motions for judgment of nonsuit are overruled. Defendant states in his brief: "This appellant recognizes that the evidence as admitted would not justify granting a motion of nonsuit."
Defendant's last assignment of error is that the court failed to instruct the jury in accordance with the provisions of G.S. § 1-180. This assignment of error is overruled for two reasons: One, it is broadside. State v. Webster, 218 N.C. 692, 12 S.E.2d 272; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101. Second, it is not brought forward, and discussed in defendant's brief. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 563; State v. Hart, 226 N.C. 200, 37 S.E.2d 487.
All defendant's assignments of error are overruled. However, the cases must go back for proper sentences.
The sentence in Case Number 7268 is imprisonment for six months, to run consecutive with, and not concurrent with, prison sentences pronounced this day by this court in Cases numbered 6711, 6712, 7069, 7070 and 7270. The sentence in Case Number 7270 is imprisonment for eighteen months, to run consecutive with, and not concurrent with, prison sentences pronounced this day by this court in cases numbered 6711, 6712, 7069, 7070 and 7268.
*618 Appeals in all these cases are now pending in this Court. In reference to all of these cases, Denny, J., said in State v. Corl, supra, in which cases numbered 6711 and 6712 were consolidated for trial: "In none of the judgments was it specified in what order the respective sentences were to be served." Upon authority of the Court's opinion written by Denny, J., in that case, it is ordered that the sentence in each case here be vacated, and that each case be remanded to the Superior Court of Cabarrus County for proper sentences upon the jury's verdict.
Remanded for proper sentences.