{ "id": 8552351, "name": "STATE OF NORTH CAROLINA v. GORDON ROWE", "name_abbreviation": "State v. Rowe", "decision_date": "1976-07-07", "docket_number": "No. 768SC213", "first_page": "115", "last_page": "117", "citations": [ { "type": "official", "cite": "30 N.C. App. 115" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 P. 2d 891", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1935, "opinion_index": 0 }, { "cite": "4 Cal. App. 2d 75", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2259934 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/cal-app-2d/4/0075-01" ] }, { "cite": "185 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569839 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0074-01" ] }, { "cite": "220 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "531-33" } ], "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "623-27" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] } ], "analysis": { "cardinality": 356, "char_count": 4990, "ocr_confidence": 0.68, "pagerank": { "raw": 1.1420408488207927e-07, "percentile": 0.5792283642791529 }, "sha256": "448aa402b8e6f810cb3350f2256a36c0500be5bde94b171aadf1e87745fa4982", "simhash": "1:88aba75e4f08bb93", "word_count": 844 }, "last_updated": "2023-07-14T18:42:34.327987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GORDON ROWE" ], "opinions": [ { "text": "BRITT, Judge.\nDefendant assigns as error the failure of the trial court to order a mistrial for the reason that an alternate juror was present in the jury room with the jury after they began their deliberations. The assignment must be sustained.\nThe record discloses: The court concluded its charge to the jury at 11:35 a.m., instructed the jury to go to their room to deliberate on their verdict, and took a ten minutes recess. Immediately following the recess, and being informed that it had failed to excuse the thirteenth juror, the court had the jury returned to the courtroom. The court asked the jurors several questions including whether they had \u201cbegun discussing or deliberating upon the merits of the case.\u201d The foreman replied that they had.\nIn the recent case of State v. Bindyke, 288 N.C. 608, 623-27, 220 S.E. 2d 521, 531-33 (1975), in an opinion by Chief Justice Sharp, our Supreme Court said:\nThe rule formulated by the overwhelming majority of the decided cases is that the presence of an alternate, either during the entire period of deliberation preceding the verdict, or his presence at any time during the deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict, if rendered. And this is the result notwithstanding the defendant\u2019s counsel consented, or failed to object, to the presence of the alternate. (Numerous citations.)\n* * *\nAfter considering the decisions expounding both the majority and minority views we are constrained to adopt the majority rule and hold that the presence of an alternate in the jury room during the jury\u2019s deliberations violates N. C. Const, art. I, \u00a7 24 and G.S. 9-18 and constitutes reversible error per se.\n* * *\n... We hold that at any time an alternate is in the jury room during deliberations he participates by his presence and, whether he says little or nothing, his presence will void the trial.\nWhile the court\u2019s inquiry in the case at bar revealed that the alternate juror did not sit at a table with the twelve jurors while they began their discussion and deliberation, the fact remains that the alternate was present, thereby voiding the trial. Commendably, the able trial judge, by questioning the jurors, attempted to establish before verdict that defendant had not been prejudiced; nevertheless, the rule laid down in Bindyke was clearly violated.\nIt is true that when the alternate was removed the court advised defense counsel that if he would move for a mistrial, the motion would be granted; and that counsel, after conferring with defendant, informed the court that defendant did not wish to make such motion. Again we quote from the opinion in Bindyke, 288 N.C. at 623, 220 S.E. 2d at 530: \u201cAn unbroken line of North Carolina cases hold that in felony- trials the accused must be tried by a jury of twelve and he cannot consent to a lesser number. The rule is restated and authorities cited in State v. Hudson, 280 N.C. 74, 185 S.E. 2d 189 (1971).\u201d\nIf a defendant in a felony trial cannot consent to a trial by fewer than twelve jurors, we fail to perceive how he can assent to deliberations by more than twelve. In People v. Bruneman, 4 Cal. App. 2d 75, 40 P. 2d 891 (1935), one of the cases cited and quoted from in Bindyke, the California court held that the constitution of that state guaranteed a defendant the right of trial by jury as the right existed at common law, and one of the essential characteristics of the common law jury is that \u201ctwelve persons, not more nor fewer, shall pass upon the issues of fact.\u201d\nFor the reasons stated, the defendant is awarded a\nNew trial.\nJudges Hedrick and Martin concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General James E. Magner, Jr., for the State.", "J. Faison Thomson, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GORDON ROWE\nNo. 768SC213\n(Filed 7 July 1976)\nJury \u00a7 3; Constitutional Law \u00a7 29\u2014 alternate juror in jury room \u2014 mistrial\nThe trial court erred in failing to order a mistrial where an alternate juror was in the jury room with the jury after they had begun their deliberations, notwithstanding the court advised defense counsel that a mistrial would be granted if defendant moved for a mistrial and defendant declined to make such a motion.\nAppeal by defendant from Small, Judge. Judgment entered 20 January 1976 in Superior Court, Wayne County. Heard in the Court of Appeals 10 June 1976.\nBy separate indictments proper in form defendant was charged with (1) possession of heroin with intent to sell, (2) sale of heroin, and (3) conspiracy to possess and sell heroin. He pled'not guilty to all charges.\nAt the close of the State\u2019s evidence, the court allowed defendant\u2019s motion for directed verdict as to the conspiracy charge but denied his motions to dismiss the other charges. Defendant presented no evidence.\nThe jury found defendant guilty of charges (1) and (2) and from judgment imposing active prison sentence, he appealed.\nAttorney General Edmisten, by Assistant Attorney General James E. Magner, Jr., for the State.\nJ. Faison Thomson, Jr., for defendant appellant." }, "file_name": "0115-01", "first_page_order": 143, "last_page_order": 145 }