State v. Alston

Court of Appeals of North Carolina

State v. Alston

204 S.E.2d 860, 21 N.C. App. 544, 1974 N.C. App. LEXIS 1866

CourtCourt of Appeals of North Carolina

DecidedMay 15, 1974

Docket748SC208

StatusPublished

Cited by4 cases

This text of 204 S.E.2d 860 (State v. Alston) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Alston, 204 S.E.2d 860, 21 N.C. App. 544, 1974 N.C. App. LEXIS 1866 (N.C. Ct. App. 1974).

Pincite

Opinion

MORRIS, Judge.

Although defendants present several assignments of error, we limit our discussion to one of those assignments which, standing alone, entitles defendants to a new trial. G.S. 9-18 provides that alternate jurors shall be discharged upon the final submission of the case to the jury. The alternate juror in this case was not discharged at that point, although all twelve regularly empanelled jurors retired to the jury room. Examination of the appellate decisions reveals that this precise factual situation has rarely arisen. However, the Supreme Court in White- *545 hurst v. Davis, 3 N.C. 113 (1800), awarded a new trial where a caveat was tried by thirteen jurors.

“It may be said, if thirteen concur in a verdict, twelve must necessarily have given their assent. But any innovation amounting in the least degree to a departure from the ancient mode may cause a departure in other instances, and in the end endanger or prevent this excellent institution from its usual course.” Id.

A decision that a deliberation by thirteen jurors is error is compelled both by the statute and by the appellate decisions of the State. Defendants are entitled to a

New trial.

Judges Campbell and Vaughn concur.

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MORRIS, Judge.

Although defendants present several assignments of error, we limit our discussion to one of those assignments which, standing alone, entitles defendants to a new trial. G.S. 9-18 provides that alternate jurors shall be discharged upon the final submission of the case to the jury. The alternate juror in this case was not discharged at that point, although all twelve regularly empanelled jurors retired to the jury room. Examination of the appellate decisions reveals that this precise factual situation has rarely arisen. However, the Supreme Court in White- *545 hurst v. Davis, 3 N.C. 113 (1800), awarded a new trial where a caveat was tried by thirteen jurors.

“It may be said, if thirteen concur in a verdict, twelve must necessarily have given their assent. But any innovation amounting in the least degree to a departure from the ancient mode may cause a departure in other instances, and in the end endanger or prevent this excellent institution from its usual course.” Id.

A decision that a deliberation by thirteen jurors is error is compelled both by the statute and by the appellate decisions of the State. Defendants are entitled to a

New trial.

Judges Campbell and Vaughn concur.

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Bluebook (online)

204 S.E.2d 860, 21 N.C. App. 544, 1974 N.C. App. LEXIS 1866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alston-ncctapp-1974.

Opinion

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