State v. Hollingsworth

HEDRICK, Judge.

The defendant first assigns as error the court’s denial of his motion to challenge the array of six special jurors summoned by the sheriff pursuant to the order of the judge. The record reveals that prior to the completion of the selection of the petit jury to try this case, the regularly summoned jury panel had been exhausted and only eight jurors had been selected to serve. The defendant “moved to challenge the array of special jurors upon the grounds that the 6 jurors summonsed [sic] by the Sheriff of Hoke County were all of the white race and that the Defendant was Negro.” The motion was denied, and after the petit jury had been selected and empaneled, the trial court made the following entry in the record: “Due to *677the challenge of the Defendant as to the race or color of the jury, this jury was sworn and empaneled consisting of 4 Negro, 7 white and 1 Indian jurors.”

G.S. 9-11 (a) and (b) provides for the selection of supplemental jurors and gives the presiding judge the right to call for such additional jurors as shall be necessary to conduct the business of the court. The judge may direct the jurors be drawn from the regular jury list or may allow the sheriff to select the additional jurors from the body of the county. The court may also require some person other than the sheriff to make the selection of the special jurors if, in his discretion, he believes the sheriff is not suitable because of a direct or indirect interest in the action to be tried.

The defendant’s motion challenges only the fact that the six supplemental jurors summoned by the sheriff to serve were members of the white race, and the defendant was a Negro. The defendant’s motion does not challenge the order of the court directing the sheriff to select six supplemental jurors, nor does it challenge the action of the sheriff in selecting the jurors, nor does the defendant by his motion contend that members of the Negro race were systematically excluded by the sheriff in his selection of the six jurors. This assignment of error is overruled.

Next, the defendant contends the court committed prejudicial error in not allowing his challenge for cause of two prospective jurors who had had business dealings with some of the State’s witnesses. The question of the competency of any juror challenged for cause rests largely in the discretion of the trial judge, and is not reviewable on appeal in the absence of a showing of an abuse of discretion. State v. Blount, 4 N.C. App. 561, 167 S.E. 2d 444. This assignment of error is without merit.

By his third assignment of error, based on numerous exceptions in the record, the defendant asserts that the trial judge violated the prohibition of G.S. 1-180 by expressing an opinion upon the evidence in the presence of the jury to the prejudice of the defendant. We do not agree. Exceptions Nos. 5 and 9 were simply statements that the question put to the witness had been previously answered and are not considered expressions of opinion. State v. Mansell, 192 N.C. 20, 133 S.E. 190 (1926). The remarks identified by Exception No. 7 were made *678out of the presence of the jury and could not have prejudiced defendant’s cause. With regard to the other instances of questions and remarks brought forward by defendant, it has long been the rule in North Carolina that a showing of a possibility of unfair influence is not sufficient. It must appear with ordinary certainty that the court’s language, when fairly interpreted, was likely to convey an opinion to the jury and could reasonably have had an appreciable effect on the result of the trial. State v. Jones, 67 N.C. 285 (1872) ; State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950). The defendant has failed to show that he was prejudiced in any way by the remarks of the judge. This assignment of error is overruled.

We have carefully examined all of the assignments of error brought forward and argued in the defendant’s brief and conclude that the defendant had a fair trial free from prejudicial error.

No error.

Judges Brock and Morris concur.