State v. Guice

ClabksoN, J.

The only question presented on this appeal: Did the court below, after the State had rested its case, over objection of defendant, who made a motion for judgment of nonsuit, O. S., 4643, have the discretion to withdraw a juror and order a mistrial?

We think so.

*763 In misdemeanors, and all cases of felonies not capital, tbe court below bas tbe discretion to order a mistrial and discharge a jury before verdict in furtherance of justice and tbe court need not find facts constituting tbe necessity for such discharge, and ordinarily tbe action is not reviewable. In capital felonies tbe facts must be found and tbe necessity for such discharge is subject to review.

S. v. Bass, 82 N. C., 570 ;

S. v. Andrews, 166 N. C., 349 ;

S. v. Ellis, 200 N. C., 77 .

In tbe Bass case, supra (a felony), at p. 574-5, speaking to tbe subject, tbe Court said:

“We bold therefore on a review of tbe cases in our reports, that bis Honor bad tbe discretion to dissolve tbe jury and bold tbe defendants for a new jury, and that tbe security for tbe proper exercise of bis discretion rests not on tbe power of this Court to review and reverse tbe judge, but on bis responsibility under bis oath of office.”

This discretion bas been jealously guarded by tbe courts below, and we can see no gross abuse presented on this record.

Tbe question of tbe statute of limitation is interestingly discussed in tbe briefs of both tbe State and defendant. From tbe present record we are not now called upon to decide this question raised by tbe briefs. Tbe judgment of tbe court below is Affirmed.