{
  "id": 8603168,
  "name": "STATE v. CHARLES BERRY",
  "name_abbreviation": "State v. Berry",
  "decision_date": "1925-10-28",
  "docket_number": "",
  "first_page": "363",
  "last_page": "364",
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  "last_updated": "2023-07-14T22:38:29.672014+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. CHARLES BERRY."
    ],
    "opinions": [
      {
        "text": "ClaeKSON, J.\nIn the record of the case sent to this Court, it appears that the jury which tried defendant was composed of only ten men.\nThe Constitution of North Carolina, Art. I, sec. 13, provides: \u201cNo person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.\u201d\nNash, C. J., in S. v. Moss, 47 N. C., p. 68, says: \u201cThese principles are dear to every freeman; they are his shield and buckler against wrong and oppression and lie at the foundation of civil liberty; they are declared to be rights of the citizens of North Carolina, and ought to be vigilantly guarded.\u201d\nAshe, J., in S. v. Stewart, 89 N. C., p. 564, says: \u201cIt is a fundamental principle of the common law, declared in \u2018Magna Charta,\u2019 and again in our Bill of Eights, that \u2018no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.\u2019 Art. I, sec. 13. The only exception to this is, where the Legislature may provide other means of trial for petty misdemeanors with the right of appeal \u2014 Proviso in same section.\u201d\nIn S. v. Rogers, 162 N. C., p. 659, Brown, J., says: \u201cIt is elementary that a jury, as understood at common law and as used in our Constitutions, Federal and State,, signifies twelve men duly impaneled in tbe case to be tried. A less number is not a jury. Traction Co. v. Hof, 174 U. S., 1.\u201d S. v. Holt, 90 N. C., 749 ; S. v. Cutshall, 110 N. C., 538; S. v. Wood, 175 N. C., 809; Bartholomew v. Parrish, 186 N. C., 85.\nTbe record proper \u201cimports verity.\u201d S. v. Wheeler, 185 N. C., p. 670; S. v. Palmore, 189 N. C., p. 538.\nWaiver of certain privileges and rights was discussed recently by Stacy, C. J., in S. v. Hartsfield, 188 N. C., p. 357, and we need not repeat bere.\nTbe defendant waived nothing, but insisted, on bis rights, as tbe record disclosed. It appearing by tbe record that tbe defendant was tried and convicted by ten men, tbe conviction was improper and no judgment could be rendered. For tbe reason given, there must be a\nNew trial.",
        "type": "majority",
        "author": "ClaeKSON, J."
      }
    ],
    "attorneys": [
      "Attorney-General Brummitt and Assistant Attorney-General Nash for the State. \u25a0",
      "Gattis & Gattis for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. CHARLES BERRY.\n(Filed 28 October, 1925.)\n1. Constitutional Law \u2014 Criminal Law \u2014 Trial by Jury \u2014 Conviction\u2014 Verdict.\nIt is required by our organic law that with certain reservations conferred on the Legislature in ease of misdemeanors, that for a lawful conviction of a crime a unanimous verdict must be rendered by a jury of twelve in open court, and a verdict of guilty rendered by a less number is unconstitutional. Const, of N. C., Art. I, sec. 13.\n2. Appeal and Error \u2014 Record.\nThe record of the trial on appeal is to be observed in the Supreme Court as importing verity.\nAppeal by defendant from Galvert, J., and a jury, at March Term, 1925, of Oeange. New trial.\nDefendant was tried and convicted of an assault with a deadly weapon upon Louis Porter and Charles Porter, and from the judgment upon such conviction appealed to the Supreme Court.\nAttorney-General Brummitt and Assistant Attorney-General Nash for the State. \u25a0\nGattis & Gattis for defendant."
  },
  "file_name": "0363-01",
  "first_page_order": 467,
  "last_page_order": 468
}