STATE of North Carolina
v.
Thomas Lewis ALSTON and Larry Battle.
No. 748SC208.
Court of Appeals of North Carolina.
May 15, 1974.Atty. Gen. Robert Morgan by Associate Atty. Norman L. Sloan, Raleigh, for the State.
W. Dortch Langston, Jr., Goldsboro, for Thomas Lewis Alston, defendant appellant.
Cecil P. Merritt, Goldsboro, for Larry Battle, defendant appellant.
MORRIS, Judge.
Although defendants present several assignments of error, we limit our discussion to one of those assignments which, standing alone, entitles defendants to a new trial. G.S. § 9-18 provides that alternate jurors shall be discharged upon the final submission of the case to the jury. The alternate juror in this case was not discharged at that point, although all twelve regularly empanelled jurors retired to the jury room. Examination of the appellate decisions reveals that this precise factual situation has rarely arisen. However, the Supreme Court in Whitehurst v. Davis, 3 N.C. 113 (1800), awarded a new trial where a caveat was tried by thirteen jurors.
"It may be said, if thirteen concur in a verdict, twelve must necessarily have given their assent. But any innovation amounting in the least degree to a departure from the ancient mode may cause a departure in other instances, and in the end endanger or prevent this excellent institution from its usual course." Id.
A decision that a deliberation by thirteen jurors is error is compelled both by the statute and by the appellate decisions of the State. Defendants are entitled to a
New trial.
CAMPBELL and VAUGHN, JJ., concur.