#### STATE v. JERRY M. ANDREWS.

(Filed 22 April, 1914.)

Trials — Withdrawing Juror — Court’s Discretion — Appeal and Error —Statutes.

Upon the trial of misdemeanors and felonies less than capital, it is within the discretion of the trial judge to withdraw a juror and make a mistrial when to him the ends of justice seem to require; and in the absence of abuse of the exercise of this discretion therein, no appeal will lie; nor is this position affected by the provisions of ch. 73, Public Laws 1913, passed doubtless to enable a defendant to present the question of his innocence or guilt upon the State’s evidence, etc., as a matter of law, with the right of appeal only from final judgment of guilt. Semble, if the statute affected the discretion of the trial judge, exception duly noted should be taken to his action and presented on appeal-from final judgment or by certiorari.

Appeal by defendant from Lane, J., at'January Term, 1914, of Guilford.

Indictment for abandonment. There was evidence offered by tbe State witb a view of supporting tbe bill of indictment. At tbe close of tbe State’s testimony, tbe case on appeal shows tbe following proceedings as transcribed from tbe minute docket entries:

“Tbe defendant’s counsel moved tbe court to dismiss the bill of indictment, on tbe ground that tbe testimony of tbe State, in tbe light most favorable to its contentions, did not show any offense to have been committed, but showed, on tbe contrary, that no offense bad been committed, and that tbe defendant bas neither abandoned nor failed to provide support, as charged.

*350“His Honor, thereupon, intimated, that he would allow this motion. Whereupon, the State asked leave, in deference to this intimation of the court, to enter a nol. pros. Upon intimation by the court that this would not be allowed, after the close of the testimony, and after the motion by the defendant, the State then asked the court to withdraw a juror and order a mistrial, which the court intimated its purpose to do. Thereupon the-defendant, through his counsel, then moved the court to proceed 'with the trial of the cause. This motion of the defendant was also declined. To this refusal of his Honor to proceed with the cause, the defendant excepted.' The court then refused to allow the defendant’s motion to dismiss. To this refusal of his Honor, the defendant excepted. Thereupon the court caused entry to be made of the withdrawal of a juror and ordering a mistrial. To this action of the court the defendant excepted.

“The defendant, excepting to' the action of his Honor in the particulars noted, in open court, appealed to the Supreme Court.”

The record further shows the judgment of the court and other proceedings had as follows:

“When State had rested, counsel for defendant moved for a nonsuit. Overruled. Exception. It appearing to the court that there may be probabilities of the prosecuting witness and the defendant being reunited in a home, the court, in exercising its discretion, ordered a juror to be withdrawn and mistrial made. The defendant in open court gives notice of appeal from the ruling of the court overruling motion of the defendant for the dismissing of this case upon testimony of State’s witness. Also for the refusal of the court to proceed with the trial of cause after said motion was overruled. Eor the ruling of the court withdrawing a juror and making a mistrial. Notice waived; appeal bond fixed at $25.”

Attorney-General Biclcett and Assistant Attorney-General Calvert for the State.

W. P. Bynum, B. B. King, Jr., and King & Kimball for defendant.

*351IIoKE, J.

Tbe order of bis Honor, making present disposition of tbe cause, was one directing tbat a juror be withdrawn and a mistrial bad, and it bas been uniformly beld witb us tbat sucb an order presents no case for appeal in a criminal action, but, in misdemeanors and felonies less than capital, the matter is referred by our law to tbe discretion of tbe trial judge. S. v. Thomas Hunter, 143 N. C., 607; S. v. Bass, 82 N. C., 576; S. v. Weaver, 35 N. C., 203. In S. v. Weaver, Nash, J., delivering tbe opinion, quotes witb approval from S. v. Morrison, 20 N. C., 115: “Tbat it must, from tbe reason and necessity of tbe thing, belong to tbe court on trials for misdemeanors to discharge tbe jury whenever tbe circumstances of tbe case render sucb interference essential to tbe furtherance of justice. Every question of this kind must rest witb tbe court under all tbe peculiar circumstances of tbe case”; and again: “Tbe rule, then, is tbat in misdemeanors tbe court may withdraw a juror when in its discretion it judges it necessary to tbe ends of justice. No precise rule can be laid down to govern tbe infinite variety of cases that may come under tbe general question touching tbe power of tbe court to discharge juries in criminal cases of misdemeanor. It must be left in tbe sound discretion of tbe judge who tries tbe cause. And it is right it should be so. Tbe reasons for exercising tbe power must be more accurately perceived and more justly felt by him than by any other court. But aside from its propriety, it being a matter of discretion, this Court bas no power to interfere. Brady v. Beason, 28 N. C., 425.” And in S. v. Bass, supra, it was expressly beld, “Tbat, in misdemeanors and all felonies not capital tbe presiding judge bas tbe discretion to discharge a jury before verdict in furtherance of justice. He need not find facts constituting tbe necessity for sucb discharge, nor is bis action reviewable”- — -a position undoubtedly sound unless under circumstances establishing gross abuse; a case not presented by this record. In S. v. Thompson, 95 N. C., pp. 596-600, to which we were referred, in bolding tbat “tbe State could not enter a nol. pros, in a criminal action after tbe jury was impaneled, without tbe consent of tbe accused,” tbe Court was careful to state tbat tbe decision bad reference to tbe *352action of the solicitor, and that it was not intended to “question the right of the presiding judge to order a mistrial in proper instances.”

It is urged for defendant that the principle announced and upheld in these cases has been altered or greatly modified by a recent act of the Legislature,' and, on motions of this character made, under the terms of the law, “the judge has no longer right to order a mistrial, but must proceed with the cause to final judgment”; and it is argued, further, that unless this view be adopted the law would be of no effect. The statute, ch. 73, Public Laws 1913, is as follows:

> "The General Assembly of North, Carolina do enact:

> “SectxoN 1. "When on the trial of any criminal action in the Superior Court the State shall hare produced its evidence and rested its case, the defendant may move to dismiss the action or for judgment of nonsuit. If the motion shall be allowed, judgment shall be entered accordingly; and such judgment shall have the force and effect of Not guilty’ as to such defendant.

> “If the motion is refused, the defendant may except; and if the defendant introduce no evidence, the case shall be submitted to the jury as in other eases, and the defendant shall have the benefit of his exception on appeal to the Supreme Court.

> “Nothing in this act shall prevent the defendant from introducing evidence after his motion for nonsuit shall have been overruled; and he may again move for judgment of nonsuit after all of the evidence in the case is concluded. If the motion is then refused, upon consideration of all of the evidence, the defendant may except; and, after the jury shall have rendered its verdict, he shall have the benefit of such latter exception on appeal to the Supreme Court.

> “If such defendant’s motion for judgment of nonsuit, made at the trial as herein provided, be granted, or be sustained on appeal to the Supreme Court, it shall in all cases have the force and effect of a verdict of Not guilty.’ ”

The statute, as its terms import, was no doubt passed to enable a defendant to present the question of his guilt or innocence, on the State’s testimony, as a legal proposition to the judge, and *353thus, if successful, avoid the risk of an adverse jury verdict, and, if the ruling was against him and no further evidence is offered, to preserve the point on appeal from a final judgment in the trial then pending, a course not open to him before its enactment. S. v. Moody, 150 N. C., 847. But the statute nowhere withdraws or proposes to withdraw from a presiding judge the power, in his discretion, to order a mistrial, and we are not at liberty to make it do so by construction. Even if this view would result in rendering the present law of none effect, it is well understood that, in many instances, this power heretofore rested in a trial judge in his sound legal discretion, and is, in many instances, and for different reasons, essential to the due administration of justice, and we would hesitate to adopt and approve a position withdrawing or seriously impairing such power unless required to do so by the plain expression of the legislative will.

Apart from this, it is the well established principle with us that no statutory appeal, in ordinary form, lies in a criminal prosecution except from a judgment on conviction or a judgment in its nature final. S. v. Webb, 155 N. C., 426, and authorities cited. In that case the Court said: “It would lead to interminable delay and render the enforcement of the criminal law well-nigh impossible if an appeal were allowed from every interlocutory order made by a judge or court in the course of a criminal prosecution, or from any order except one in its nature final; accordingly, it has been uniformly held with us that an ordinary statutory appeal will not be entertained except from a judgment on conviction or one in its nature final, citing, among other authorities, S. v. Lyon, 93 N. C., 575; S. v. Hinson, 82 N. C., 540; S. v. Jefferson, 66 N. C., 309; S. v. Bailey, 65 N. C., 426.

The very statute under which defendant now endeavors to proceed is in full recognition of the principle. Thus, when the motion is made on the State’s evidence, “the case shall be submitted to the jury as in other cases, and the defendant shall have the benefit of his exception on appeal, etc.,” and “if further evidence is introduced and the motion is renewed on the entire *354testimony and. refused, tbe defendant may except and, after tbe jury shall have rendered its verdict, defendant shall have the benefit of the latter exception on appeal, etc.”

Therefore, even if defendant is right in his position, he could only preserve his point by exception duly noted and have same renewed on a subsequent appeal or by certiorari.

For the reasons given, we are of opinion that the appeal should be dismissed, and it is so ordered.

Appeal dismissed.