STATE
v.
Bruce Phillip STEVENS.
No. 509.
Supreme Court of North Carolina.
May 2, 1956.*410 Pittman & Staton, by J. C. Pittman, Sanford, for defendant, appellant.
*411 William B. Rodman, Jr., Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
HIGGINS, Justice.
The defendant's motion to quash the indictment made before plea, and the motion in arrest of judgment made after verdict, challenge the validity of the indictment upon the ground that it was returned by an illegally constituted grand jury. The defendant contends the court committed error (1) in discharging grand juror Kelly for an insufficient reason, that is, "He had been tried and convicted for driving drunk and not fit to serve on the grand jury," and (2) ten grand jurors were selected at the October, 1955 Term, whereas the law applicable to Lee County provided for the selection of only nine members.
While the defendant had no right to keep Kelly on the grand jury and cannot complain of his removal, he did have the right to object to the selection of his successor, either on the ground that he did not possess the qualifications or that the manner of his selection was illegal. In the case of State v. Peacock, 220 N.C. 63, 16 S.E.2d 452, 453, this Court, speaking through Stacy, C. J., said: "The right of a defendant, or party litigant, in respect of the jury, grand or petit, is to challenge, or to reject, and not to select jurors. C.S. § 2335. State v. Levy, supra [187 N.C. 581, 122 S.E. 386]." The defendant does not contend the 10th juror lacked the necessary qualifications. The objection is upon the ground that 10 men were selected instead of the nine provided for in the Local Law applicable to Lee County. The Act provides the judge presiding at any criminal or civil term of superior court, may, at any time, discharge the grand jury from further service, in which event he may cause a new grand jury to be drawn for the unexpired term. The authority to discharge the whole grand jury would seem to include the right (if that right did not already exist) to discharge any one or more of its members. "The power of the court to discharge or excuse grand jurors on the original panel and fill vacancies created thereby are inherent and existed at common law in the absence of express statutory authority. * * * Generally, discharging or excusing some of the grand jurors on the original panel and supplying their places will not invalidate their action so long as the newly constituted panel is within the statutory limit." 24 Am.Jur. 848. See State ex rel. Dunn v. Noyes, 87 Wis. 340, 58 N.W. 386, 27 L.R.A. 780; People of State of Illinois v. Gray, 261 Ill. 140, 103 N.E. 552, 49 L.R.A.,N.S., 1215.
"When the power is given a court to excuse one called to serve as a grand juror, * * * authority to fill the vacancy thus occasioned with another possessing the requisite qualifications is also conferred by necessary implication." 38 C.J.S., Grand Juries, § 22, p. 1013. See also, State v. Perry, 122 N.C. 1018, 29 S.E. 384; State v. Barber, 113 N.C. 711, 18 S.E. 515.
Statutory provisions which relate to the number and qualification of grand jurors or which are designed to secure impartiality and freedom from unfair influences are ordinarily deemed to be mandatory; those which prescribe mere details as to the manner of selecting or drawing them are usually regarded as directory only. Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114.
We conclude, therefore, that the presiding judge, in his discretion, had the power (1) to discharge Kelly from the grand jury for cause, and (2) to fill the vacancy thus created by the drawing of another duly qualified grand juror. Of the grand jurors drawn, one was to take the place of Kelly and the other nine to take the places of those whose terms expired by reason of having already served one year. The burden was on the defendant to show the disqualification. State v. Perry, supra.
The defendant contends the court abused its discretion in refusing to continue the case on account of the absence of witnesses. However, the defendant made no showing as to his efforts to have these witnesses in court and no showing as to what testimony material to the defense they could give if present. While the indictment *412 was returned at the term at which the trial was held, the offense was alleged to have been committed one month and two days prior to the beginning of the term. The motion for continuance was made upon the ground of absence of witnesses and not for lack of time in which to prepare the defense. The record does not show abuse of discretion in denying the motion for continuance. State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Creech, 229 N.C. 662, 51 S.E.2d 348; State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Whitfield, 206 N.C. 696, 175 S.E. 93.
While defendant's counsel, out of abundance of precaution, took numerous exceptions to the admission and exclusion of evidence, careful examination of the record fails to show prejudicial error. The questions asked by the court appear to be of a clarifying nature. Andrews v. Andrews, N.C., 92 S.E.2d 180. The evidence was ample to take the case to the jury and to sustain the verdict. To prevail on appeal it must be made to appear that appellant's rights have been prejudiced. State v. Creech, supra; State v. Beal, 199 N.C. 278, 154 S.E. 604.
The charge of the court covered 36 pages of the record. All except 15 lines have been made the subject of the 72 exceptions taken to it. Some of the exceptions relate to two or more pages of the charge. They do not point up with the definiteness required by Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. at page 555. State v. Norris, 242 N.C. 47, 86 S.E.2d 916; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Boyer v. Jarrell, 180 N.C. 479, 105 S.E. 9; Harrison v. Dill, 169 N.C. 542, 86 S.E. 518.
In charging the jury, the court stated the principles of law as they relate to the evidence in the case in substantial accord with the decisions of this Court. The recapitulation of the evidence and the statement of contentions of the parties are unobjectionable. The exception to the court's failure to charge on circumstantial evidence cannot be sustained. The evidence in the case was largely direct. It consisted of the statements of the two men who actually committed the robbery. The circumstantial evidence offered was incidental to and in corroboration of the direct evidence. In the absence of special request, failure to charge with respect to circumstantial evidence was not error. State v. Bennett, 237 N.C. 749, 76 S.E.2d 42.
The defendant, both in his brief and on the oral argument, urges as error the failure of the trial judge to charge the jury to scrutinize and receive with caution the evidence of admitted accomplices. Request for such instruction was not made at the trial. In the case of State v. Wallace, 203 N.C. 284, 165 S.E. 716, 719, Justice Adams, in discussing the trial court's failure to instruct the jury to scrutinize the testimony of an accomplice, stated: "The principle is sustained in a number of our decisions and explicitly approved in the following words: `Instruction to scrutinize the testimony of a witness on the ground of interest or bias is a subordinate and not a substantive feature of the trial, and the judge's failure to caution the jury with respect to the prejudice, partiality, or inclination of a witness will not generally be held for reversible error, unless there be a request for such instruction.' State v. O'Neal, 187 N.C. 22, 120 S.E. 817, 818; State v. Sauls, 190 N.C. 810, 130 S.E. 848." State v. Reddick, 222 N.C. 520, 23 S.E.2d 909; State v. Kelly, 216 N.C. 627, 6 S.E.2d 533; State v. Cagle, 209 N.C. 114, 182 S.E. 697; State v. Bohanon, 142 N.C. 695, 55 S.E. 797.
In the case of State v. Hooker, 243 N.C. 429, 90 S.E.2d 690, this Court granted a new trial for failure of the judge to charge the jury to scrutinize the evidence of accomplices. However, the defendant, in apt time and in writing, requested the instruction and excepted to the refusal of the court to give it. The request for the instruction in the Hooker case distinguishes it from this case and the others here cited.
No error.
JOHNSON, J., not sitting.