State v. . Durham , 72 N.C. 447 ( 1875 )

1. After the jury had been charged by the Court and had retired to consider of their verdict, it was made to appear that one of the jurors was needed in Court as a witness in a case then called for trial, whereupon the Court directed the juror to be brought from the jury room, as a witness, and upon the case being continued, he was immediately returned to the jury room. This temporary separation of the juror from his fellows, by the direction and under the supervision of the Court, does not vitiate the verdict, as has been determined by this Court in many cases. State v.Miller, 1 Dev. Bat. 500. State v. Tilgman, 11 Ired. 573; State v. Lytle, 5 Ired. 58; State v. Hester, 2 Jones 53; Moore v. Edmondston, 70 N.C. 471.

2. The counsel of the prisoner asked the Court to charge the jury, that if they were not fully satisfied of the prisoner's guilt of the rape, they might under the same indictment, find him guilty of assault and battery. His Honor refused the instruction, in that he committed no error. No evidence is set forth, from which this Court can see that the prisoner was entitled to such an instruction, even if in law, the jury could render such a verdict. The indictment contains but a single count, that of the capital felony of rape.

The rule of common law is, that in an indictment for a felony, there could not be a conviction of a minor offence included within it, if such minor offence be a misdemeanor; and this is the foundation of the rule, than an acquittal of a felony, is no bar to another indictment for the same act, charging it as a misdemeanor, and vice versa, 2 Hawk C. 47, S. 6, 1 Chit. C. L. 251, 679;I Ld. Ray 711. 3 Salk, 193. The same rule of the common law prevails in most of the States of the Union, though in some of them, it has been altered by statute, so that a conviction of a misdemeanor is allowed in cases where it is included in the higher offence charged. Whar. Crim. Law, sec. 400.

In North Carolina we have adhered to the common law. In the State v.Arrington, 3 Murph 571, the prisoner was indicted for horse stealing, and the jury found as their verdict that "he was not guilty of the horse stealing, but was guilty of trespass. Whereupon the Court ordered them to retire and reconsider the case and return a verdict of guilty or not guilty, in manner and form as charged in the indictment, and no more. The jury retired and soon returned their verdict, finding the defendant guilty of the felony charged in the indictment. Upon appeal to this Court, it was held that the first verdict should stand as it was a plain response of not guilty to the issue submitted, and the addition of the defendant's having been guilty of trespass, did not vitiate it. In delivering the opinion, C. J. TAYLOR said: "had the first verdict been so rendered, the judgment would have been arrested; the rule being, that a defendant cannot be found guilty of a misdemeanor, on an indictment for felony." So far as we are informed the practice in this State has been in conformity with this decision.

There is no error. This will be certified to the end that further proceedings be had according to law.

PER CURIAM. Judgment accordingly.