#### STATE v. BAXTER CAIN.

(Filed 15 May, 1918.)

1. Mistrials — Murder — 'Homicide — Capital Felony — Juror Withdrawn— Trial.

In maintaining a fair and impartial trial, the court may withdraw a juror in the trial of a capital felony when it is necessary for exact justice to he done; and where a juror has, under a misunderstanding, told the solicitor, upon his examination, that he could convict in the first degree the prisoner upon trial for murder under circumstantial evidence, and after the jury had been impaneled stated he could not do so, and that it was his own fault that he had answered to the contrary, the court may withdraw a juror, enter a mistrial, impanel another jury, and proceed to try the prisoner. It is not required that the court should wait until the introduction of the evidence and then make a mistrial by withdrawing a juror.

2. Appeal and Error — Jurors—Mistrials—Findings.

Where the court withdraws a juror and enters a mistrial in a capital felony he should find the facts upon which his action is based for review on appeal.

3. Mistrial — Murder — Homicide — Capital Felony — Appeal and Error— Findings — Juror Withdrawn.

Where a mistrial in a capital felony has been properly made by the court, by withdrawing a juror, and thereupon another and impartial trial has been given, objection on appeal that the prisoner has been deprived of his plea of former jeopardy is untenable.

4. Homicide — Murder—Robbery—Identified Money.

Where the prisoner is tried for the murder of the custodian of a safe which had been robbed, testimony of a witness as to a mended bill which had been deposited therein is competent for the purpose of identifying a similar bill found on the prisoner, and testimony that the bill looked like the same one is either competent in corroboration or harmless.

5. Same — Motive.

Where a safe has been robbed and its custodian killed, it is competent to show that the prisoner was in need of money which he knew was kept therein to show motive.

6. Homicide — Murder—Evidence—Circumstance.

Evidence in this case is held sufficient to sustain a verdict against the prisoner of murder in the first degree, and testimony that some unidenti-*826fled person was seen at night near the place of the crime on a mule resembling that'owned by the prisoner was, with the other evidence, a circumstance to be considered by the jury.

Appeal by defendant from Oline, J., at September Term, 1917, of RowaN.

Tbe prisoner was convicted at September Term, 1917, of Rowan, of murder in tbe first degree of one Abel Harris.

Tbe first exception is to tbe order of tbe court withdrawing a juror and making a mistrial, and Exception 8 is to tbe refusal to grant a motion in arrest of judgment on tbe ground of tbe defendant’s former jeopardy. O.n these motions bis Honor found tbe following facts:

“This was an indictment against Baxter Cain, tbe defendant, charging him with murder in tbe first degree, No. 25 on the criminal docket of tbe September Term, 1917, of Rowan. Tbe case was set down for trial and called for trial on.Tuesday, 11th day of September, 1917, at which time tbe State announced its readiness and tbe prisoner bis readiness. A special venire of fifty men bad been summoned to appear as jurors under tbe statute. While tbe jury was being drawn, a regular juror, to wit, M. A. Goodman, whose name was drawn from tbe bat, appeared and was asked by tbe solicitor for tbe State whether or not he bad any conscientious or religious scruples against returning a verdict where tbe penalty would be tbe death sentence upon circumstantial evidence, if such evidence warranted, and tbe juror answered that be bad not, thereupon be was passed by tbe State and accepted by tbe defendant and was sworn as a juror, being No. 3. Other names were called and a jury of twelve was chosen, sworn, and impaneled, as is usual in capital cases. Immediately after tbe jury was finally impaneled, this juror, M. A. Goodman, arose in bis seat and stated to tbe court that be did not understand tbe question that was asked by tbe solicitor. He stated that bis convictions were such that be would not render a verdict of guilty of murder in tbe first degree in any case upon circumstantial evidence. He was further questioned, and tbe solicitor stated that be was relying for a verdict in this case upon circumstantial evidence, and again asked tbe juror if be would convict if tbe evidence was sufficient in such a case, and be stated that be would not. He further stated in response to further questions by tbe court that bis feelings were such that be would not bring in a verdict of murder in tbe first degree upon circumstantial evidence solely. He further stated to tbe court that be was sorry not to have made this statement sooner. Tbe court asked him if be bad not beard tbe same question asked of other jurors whose names were drawn from tbe bat, and be said that be bad, and be was then asked *827why be did not make, bis feelings and convictions known to tbe'court before tbe cause bad proceeded to tbis length; be replied tbat be was dif&dent about tbe matter and hesitated to speak out, and now felt tbat be was himself to blame.

“Upon these findings of fact tbe solicitor asked tbat tbe court direct a mistrial, and tbe court being of tbe opinion tbat such course was necessary and absolutely required to attain tbe ends of justice in order tbat tbe State and tbe defendant might both have a trial before a jury of competent jurors and no.t disqualified by their seated convictions and prejudgment, whether those convictions be conscientious or religious, and in order tbat tbe ends of justice might be attained, ordered a mistrial, and having withdrawn a juror, to wit, J. L. Holshouser, in so far as tbe withdrawal of a juror may be necessary, and having discharged tbe present jury, proceeded to make further provision for tbe trial of tbe cause as though no jury bad ever been drawn, chosen, or impaneled, and to tbis, in due time, tbe defendant at tbe bar excepted.

“E. B. CliNe, Judge Presiding.”

From tbe verdict and sentence tbe prisoner appealed.

Attorney-General Manning and Assistant Attorney-General Sykes for the State.

A. H. Price, W. O. Ooughenour, and T. H. Vanderford, Jr., fon ■prisoner.

ClaRK, O. J.

Tbe exception to tbe action of tbe court in ordering a mistrial and to tbe refusal of tbe motion in arrest of judgment on tbe plea of former jeopardy present tbe same question, and tbis is tbe chief ground relied upon on tbe appeal.

"When tbe juror Goodman was- asked by tbe solicitor of tbe State “whether or not be bad any conscientious or religious scruples against returning a verdict where the penalty would be tbe death sentence upon circumstantial evidence, if such evidence warranted, and tbe juror answered tbat be bad not, be was passed by tbe State and being accepted by tbe prisoner be was sworn as a juror.”

Tbe court further finds: “Immediately after tbe jury was finally impaneled, this juror, M. A. Goodman, arose in bis seat and stated to tbe court tbat be did not understand tbe question tbat was asked by tbe solicitor. He stated bis convictions were such tbat be would not render a verdict of guilty of murder in tbe first degree in any case upon circumstantial evidence. He was further questioned and tbe solicitor stated tbat be was relying for a verdict in tbis case upon circumstantial evidence, and again asked tbe juror if be would convict if tbe evidence was sufficient in such a case, and be said be would not.” *828He was then examined by the court and reiterated this statement, expressing his regret that he had not made this statement sooner, and said he had not done so “because he was diffident about the matter and hesitated to speak out, and now felt that he was himself to blame.” Upon the findings of fact, which are above set out in full in the statement of the ease, the solicitor asked the court to direct a mistrial, and “the court being of the opinion that such course was necessary and absolutely required to attain the ends of justice in order that the State and the defendant might both have a trial before a jury of competent jurors, and not disqualified by seated convictions and prejudgment, whether those convictions be conscientious or religious, and in order that the ends of justice might be attained,” withdrew a juror and ordered a mistrial, and having discharged the jury, proceeded to draw and impanel another jury as though no jury had ever been drawn, chosen or impaneled.

The object of a trial being expressed in the oath of a juror to “Bo equal and impartial justice between the State and the prisoner at the bar,” it is impossible that the judge could have taken any other action. The object of a trial is to acquit the innocent and to convict the guilty. Neither can be done with any certainty when the juror states frankly under oath that he cannot find a verdict according to the law and the evidence. It was unfortunate that the juror should not have made this statement on his vow dire, but it is to his credit that he made it at least before there was a long trial and a miscarriage of justice by a hung jury, as would doubtless have been the result.

In England there were, till after the year 1800, 204 offenses which were punishable capitally; and until within the last twenty years there was no appeal by the prisoner in England from conviction in any criminal case. Indeed until within the last 100 years (in 1836) in felonies defendants were not allowed counsel to speak for them, nor summary process to compel the attendance of witnesses in their behalf. In view of such disadvantages, the courts where there seemed to be extenuating or doubtful circumstances went sometimes far to sustain technicalities as to indictments and acquittals on the ground of former jeopardy or on other grounds. It is probable that the judges exercised their discretion in such matters with some regard to the development of the facts in each case.

In this State this was not necessary, and we have long since had statutes forbidding the allowance of technical defenses as to the form of indictments and in other matters. Revisal, 3254, 3255.

As to capital offenses, the law with us has long been also well settled that “In a trial for capital felony the judge for sufficient cause may discharge the jury and hold the prisoner for another trial; in which *829ease it is bis duty to find tbe facts and set tbem out on the record, and his conclusions upon matters of law arising from the facts may be reviewed by this Court.” S. v. Jefferson, 66 N. C., 309, citing S. v. Prince, 63 N. C., 529; S. v. Alman, 64 N. C., 364, and S. v. Baker, 65 N. C., 332.

In S. v. Wiseman, 68 N. C., 203, the Court said: “It must now be considered as settled law in our State that in eases of necessity a mistrial may be ordered even in capital cases. The term necessity, as used in this connection, must be regarded rather as a technical term and includes quite distinct classes of necessity.” The Court then explains that the necessity applies not only to cases of a physical nature, as illness or insanity of a juror, hut “the necessity of doing justice,” arising from the duty of the court to guard the administration of justice from fraudulent practices, as in the case of tampering with the jury or keeping hack witnesses on the part of the prosecution by the prisoner. Among other instances of a mistrial in capital cases are S. v. Honeycutt, 74 N. C., 391; S. v. McGimsey, 80 N. C., 311; S. v. Davis, 80 N. C., 385.

In S. v. Bell, 81 N. C., 591, the Court, reiterating what is said above in S. v. Wiseman as to the two classes of necessity, i. e., “physical necessity and the necessity of doing justice,” says that the latter arises from the duty of the court to prevent the obstruction of justice by guarding its administration against all fraudulent practices, citing S. v. Wiseman, supra, and S. v. Bailey, 65 N. C., 426.

In S. v. Washington, 89 N. C., 535, this Court approved a mistrial where, after the jury had been impaneled, the solicitor, on the reassembling of the court, moved for the withdrawal of a juror “for the alleged reason that two jurors whose names were mentioned had fraudulently procured their admission into the panel on a false oath of indifference for the purpose of securing the acquittal of the accused. The court heard testimony upon the matter, found as a fact, and declared the charges against the jurors to be true; and as a conclusion of law that the jury had been impaneled by the fraud of the prisoner, or some one on his behalf, with a view to the prisoner’s acquittal, a juror was withdrawn and a mistrial ordered. The prisoner protested, avowing his disbelief of the charge and, if true, any participation in it.”

This Court affirmed this action of the court below, citing S. v. Bell, supra, and holding that it was the clear duty of the presiding judge to see that there was a fair and impartial trial and to interpose his authority to prevent unfair dealings, and rejected the contention of counsel for the prisoner that “such power can only-be exercised when the prisoner is in privity with the attempt, and that the trial must' go on to *830verdict, however gross a fraud, in the absence of evidence of the prisoner’s connection with it,” and said that the necessity for the action of the court “in maintaining its dignity and integrity and assuring the firm and impartial administration of justice” is the same whether the prisoner procured the fraudulent action or would merely be its passive beneficiary.

In S. v. Tyson, 138 N. C., 627, a mistrial was held valid because one' of the jurors had become intoxicated.

In S. v. Guthrie, 145 N. C., 492, the Court said: “The law is well stated in S. v. Tyson, 138 N. C., 628, 'It is well settled, and admits of no controversy, that in all cases, capital included, the court may discharge a jury and order a mistrial when it is necessary to attain the ends of justice. It is a matter resting in the sound discretion of the trial judge; but in capital cases he is required to find the facts fully and place them upon record, so that upon a plea of former jeopardy, as in this case, the action of the court may be reviewed.”

In S. v. Dry, 152 N. C., 813, the prisoner absented himself for a short while from the court. The court on learning the fact asked his counsel if he intended to rely upon that fact to invalidate the trial. Counsel replying that he did, the court withdrew a juror and ordered a mistrial. This Court approved his action, calling attention to the fact that “in the Federal courts and in most of the other States a mistrial in a capital felony rests in the sound discretion of the trial judge (as it does in all other criminal cases with us), but that we have not gone further than to approve a mistrial in a capital felony in cases of necessity, physical, or in the interests of justices,' the facts in such cases to be found by the judge, subject to review as a matter of law on appeal,” and approving S. v. Guthrie, 145 N. C., 495, where it was held that in a capital felony the judge may “order a mistrial when it is necessary to attain the ends of justice.”

In a more recent case, S. v. Upton, 170 N. C., 770, the Court again held that in a trial for capital felony the court can order a mistrial “when necessary to attain the ends of justice,” citing S. v. Guthrie, S. v. Tyson, and S. v. Dry, supra.

To the same purport are the rulings elsewhere in this country. In U. S. v. Perez, 9 Wheaton, 579, it was held that the courts are invested with the discretionary authority of discharging a jury from giving any verdict in a capital case whenever in their opinion there is a manifest necessity for such an act or the ends of public justice would otherwise be defeated.

In S. v. Allen, 46 Conn., 531, the prisoner’s counsel in the course of a trial for murder and after the witnesses for the State had been examined stated to the court that he had been informed and believed that *831one of tbe jurors was disqualified because before tbe trial be bad expressed an opinion that tbe prisoner was guilty, and asked tbe court to suspend tbe trial and bear evidence on tbe point, wbicb tbe court did, and found tbe fact to be as claimed, but tbe prisoner’s counsel then offered to waive tbe disqualification and proceed witb tbe trial witb tbe panel or to go on with tbe 11 jurors, wbicb tbe court refused to do, and discharged tbe jury. It was held that this was not a bar to another trial.

Tbe law is well summed up in tbe following quotation from 8 R. C. L., p. 153, “Under tbe strict practice wbicb anciently prevailed, in England at least, tbe discharge of tbe jury in a criminal case for any cause after tbe proceedings bad advanced to such a stage that jeopardy bad attached, but before a verdict of acquittal or conviction, was held to sustain a plea of former jeopardy, and therefore to operate practically as a discharge of tbe prisoner. In deference, however, to tbe necessities of justice, this strict rule has been greatly relaxed and the general modern rule is that tbe court may discharge a jury without working an acquittal of tbe defendant in any case where tbe ends of justice, under tbe circumstances, would otherwise be defeated.”

Prisoner’s counsel in their brief contend that tbe juror Goodman’s statement that be would not bring in a verdict of murder in the first degree upon circumstantial evidence only should not have been taken, but that tbe court should have waited until tbe evidence was produced so that tbe court might decide whether it was in fact circumstantial. Such course would have been a useless consumption of tbe public time, and needlessly expensive, for tbe solicitor for tbe State publicly announced that be was relying upon circumstantial evidence for conviction, and tbe court besides can see from tbe record that this was tbe case.

In tbe appellant’s brief be states: “If this Honorable Court should be of tbe opinion that tbe plea of former jeopardy could not avail tbe appellant, it certainly was at least error on tbe part of bis Honor to discharge tbe juror and order a mistrial, wbicb entitled tbe appellant to a new trial, and we, of course, say this witb tbe understanding that if tbe court should so bold we will be precluded from again entering a plea of jeopardy upon a new trial.”

If, however, tbe prisoner is correct in bis contention of former jeopardy, this Court would be powerless to order a new trial, but would have to discharge tbe prisoner. There is no exception as to tbe manner of obtaining tbe second jury and nothing on the record suggests any irregularity. Tbe prisoner has already bad a new trial before an impartial jury and is not now entitled to another.

*832Exception 2 is to tbe admission of testimony describing tbe condition of a dollar bill wbicb tbe witness identified as baying deposited in tbe safe, wbicb was robbed at tbe time of tbe murder of tbe custodian of tbe property, tbe bill baying been torn in two and pasted together with brown paper. This was competent for tbe purpose of identifying a similar bill wbicb was found in tbe possession of tbe prisoner immediately following tbe homicide and robbery.

Exception 3 is to tbe same witness’s testimony that be bad prior to tbe trial seen this bill and bad stated that “it looked pretty much like tbe same bill.” This was merely corroboration of bis own testimony and was competent and harmless.

Exception 4 is to evidence that tbe prisoner on prior occasions bad recently attempted to borrow sums of money. This was competent as a motive for the crime to show that be was in need of money, and that be availed himself of tbe opportunity to rob tbe safe and secure tbe funds wbicb tbe prisoner knew were placed each night in tbe safe (which was robbed) by tbe conductors of tbe street railway. Tbe deceased was tbe night watchman in charge of tbe property.

Exception 5 is to tbe testimony of the witness that about 2 o’clock on tbe night of tbe homicide be bad seen a man riding a mouse-colored mule, attempting to cross tbe railroad track near tbe cotton mill. He said it was dark and be was not able to identify tbe prisoner as tbe man, but tbe mule was about tbe size of tbe prisoner’s mule. This was offered simply as a circumstance, together with tbe other evidence, to identify tbe prisoner with tbe crime. Whether it bad any weight or not was for tbe jury. In view of tbe other testimony, it was not so remote that it should have been excluded, nor was it a matter of sufficient materiality to be prejudicial error justifying a new trial.

Exceptions 6 and 7 are to tbe refusal to grant a motion of judgment as of nonsuit. There was ample evidence not only to submit tbe case to tbe jury, but to justify this conviction, if it satisfied tbe jury beyond a reasonable doubt, of tbe prisoner’s guilt.

Tbe prisoner has been defended with marked ability by bis learned counsel, and everything has been presented to tbe judge and jury below and to this Court that in any way could militate in tbe prisoner’s favor. We find no error in tbe conduct of tbe trial by tbe able and impartial judge who presided.

If tbe statutory time as to tbe several steps in settling cases on appeal bad been observed as they should have been, this case would have stood for argument at tbe end of tbe docket at last term.

No error.