{ "id": 1955488, "name": "THE STATE v. MILES BAILEY", "name_abbreviation": "State v. Bailey", "decision_date": "1871-06", "docket_number": "", "first_page": "426", "last_page": "429", "citations": [ { "type": "official", "cite": "65 N.C. 426" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "63 N. C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278175 ], "opinion_index": -1, "case_paths": [ "/nc/63/0529-01" ] }, { "cite": "63 N. C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278175 ], "opinion_index": 0, "case_paths": [ "/nc/63/0529-01" ] } ], "analysis": { "cardinality": 370, "char_count": 6472, "ocr_confidence": 0.422, "pagerank": { "raw": 7.223172562602807e-07, "percentile": 0.9677637576553692 }, "sha256": "cf4a038c71ee00dbc6087310f7c169324b89371e7f99155b75cd91f2c29e838c", "simhash": "1:888313f9c45cec7f", "word_count": 1122 }, "last_updated": "2023-07-14T18:41:56.423501+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE STATE v. MILES BAILEY." ], "opinions": [ { "text": "Botden, J.\nAt common law, there was no appeal from the decision of any of the Courts, high or low, and these decisions. could only be reviewed by writ of error, or writ of false judgment.\nBy our law, appeals are used'as a substitute for those writs, and these writs were always after a final judgment in the Court where the suits were tried; and appeals being by our law a substitute for writs of error and false judgment, were always alter a final decision, until the act of 1831-2,Rev. Code, chap. 35, sec. 2, entitled \u201c an act to allow appeals to the Supreme Court from interlocutory judgments, orders, and decrees of the Superior Courts of Law and Courts of Equity.\u201d\nAnd when appeals were allowed by the Judges under the act of 1831-2, the Supreme Court possessed no power under this act to enter any judgment reversing, affirming or modifying the orders, judgment or decrees appealed from, but the Supreme Court are directed to cause their opinion to be certified to the Court below with instructions to proceed upon such order, judgment or decree, or to reverse or modify the same according to the opinion so certified. But the act 1831-2, did not authorize the Judges to allow appeals in State cases. So appeals in Such cases can only be taken after a final decision in the Superior Court.\nThere was therefore error in allowing an appeal from the -order directing a mistrial.\nWe make this decision with less regret for the reason, that it does not deprive the defendant of his right to have the decision of his Honor reversed by this Court, if he erred in ordering the mistrial, as the defendant can avail himself of the objection when called for a second trial. See the cases of the People v. Alcott, 2 Johnson\u2019s cases, 301; Commonwealth v. Cook, 6 Sergeant, S. & Rawle, 577: and Klock v. The People, 2 Parker, C. C. 676. In inferior misdemeanors such as assaults, batteries, forcible trespass, and the like, the Judges have a dis\u2022sretionary power to order mistrials, and in such case their deci- \u25a0 sions cannot be reversed in like causes, but even here mistrials \u00a1.should not be granted for slight causes.\" But in capital felonies, and in felonies not capital, and in misdemeanors where inferior punishments may be inflicted, as in perjury, conspiracy and the like, the decisions of the Judges in the Court below may be reviewed in this Court: In such cases the Judges should find the facts, which this Court cannot review; but the law.bearing upon the facts thus found, are \u00a1the subject of review in this Court, by an appeal, alter a final decision in the Court below.\nNo mistrials should be ordered in such cases, unless there exists what the law terms a strong and urgent necessity. In the case of the Commonwealth v. Cook, 6 Sargeant and Rawle 577, Chief Justice Tilghman in defining this legal necessity, says \u201cthe moment it is made to appear to the Court, by satisfactory evidence, that the health of a single juryman is so affected as to incapacitate him to do his duty, a case of necessity has sen.\u201d The Chief Justice also says, there is a class of eases which depend on what may be termed a necessity of doing justice, such as where the prisoner has tampered with some of the jui\u2019y; this necessity arises from the duty of the Court, to guard the administration of justice against fraudulent practices.\nIt is presumed that it was this necessity upon which the Judge below ordered the mistrial in this case.\nIn the case of the State v. Prince et. al., 63 N. C. 529, this Court did entertain the appeals from a decision ordering a mistrial. In that case both the State and defendant appealed, and no objection was taken to the appeal, and the attention of the Court was not called to the fact, that in criminal cases, no appeals are allowed from interlocutory orders, but only after the final decision.\nThere being error in allowing the appeal, it must be dismissed.\nPer Curiam. Judgment affirmed.", "type": "majority", "author": "Botden, J." } ], "attorneys": [ "Attorney General, for the State.", "D. A. JBornes, for the defendant." ], "corrections": "", "head_matter": "THE STATE v. MILES BAILEY.\nThe judgments of inferior Courts at Common Law could only be reviewed by writs of error, or writs of false judgment. By our Law, appeals are used in lieu of those writs.\nAppeals from interlocutory judgments are only allowed in civil suits, and! this by virtue of Rev. Code, chap. 34, sec. 27. Therefore when the Court found from ez-pwrte affidavits that the defendant, during the trial of an indictment for larceny, was guilty of tampering with a juror, and for such conduct ordered a juror to be withdrawn and a mistrial made,the defendant had no right to appeal to this Court. State v. Prince, 63 N. C. 529, cited and commented on.\nThis was an indictment for larceny, with a count for receiving stolen goods, tried before Pool, J., at Spring Term, 1871, of Bertie Superior Court.\nThe defendant had pleaded \u201c not guilty,\u201d when the jury wasempanneled, and three witnesses had been examined on the' part of the State. The Court was then adjourned tor the-night, and the jury permitted to separate, with the usual instructions not to discuss the case amongst themselves, nor to-allow others to speak of the matter to them.\nOn the meeting of the Court next morning, the Solicitor offered certain exporte affidavits of indifferent persons,, charging defendant, two of the jurors, and one of the witnesses, with corrupt conduct during the recess of the Court, and moved to-discharge the jury from the further consideration of the case. The defendant opposed the motion, and asked to be allowed to offer the affidavits of himself and those of the two jurors, and that of the witness charged with these offences, denying' the allegations made against them. The Court held that the affidavits of indifferent persons could be offered, but declined to hear the affidavits of the parties implicated; to which defendant excepted.\nTh Court, after finding the facts from the ex parte affidavits, which the decision of the Court renders unnecessary to be recited, ordered a juror to be withdrawn and mistrial made.\nThe Solicitor moved that the defendant be required to enter into recognizance for his appearance at the next term of this Court. The defendant moved to be discharged. The Court overruled defendant\u2019s motion, and required him to enter into-recognizance for appearance asked for by the State.\nThe defendant prayed an appeal to the Supreme Court, from.' the order discharging the jury and making a mistrial, and from the order requiring him to enter into recognizance.\nAttorney General, for the State.\nD. A. JBornes, for the defendant." }, "file_name": "0426-01", "first_page_order": 436, "last_page_order": 439 }