State v. Perry

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176 S.E.2d 729 (1970)

277 N.C. 174

STATE of North Carolina v. Milford PERRY.

No. 7.

Supreme Court of North Carolina.

October 14, 1970.

*731 Robert Morgan, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Frank B. Aycock, Jr., Elizabeth City, for defendant.

HIGGINS, Justice.

The defendant's able trial counsel requests this Court to review the record of the trial and to give the defendant the benefit of any error disclosed in the record. However, by brief and by oral argument, the defendant relies for a new trial on his Assignment of Error No. 3, which presents this question: "Did the trial judge commit prejudicial error in denying the defendant the right to the selection of the trial jury according to North Carolina custom and practice?"

Counsel for the defendant argued here the defendant was prejudiced in the jury selection by the failure of the court to require that each prospective juror be separately sworn and separately examined, touching his fitness to serve on the trial panel. He cites as authority this Court's opinion in State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886. Admittedly the practice usually, but not always, followed in selecting the trial jury in a capital case is correctly stated in Roseboro. The practice was alluded to in that case for the purpose of disclosing the wide range of inquiry allowed the parties before requiring them to pass on the acceptability of each juror. In Roseboro the jury selection covered 416 pages of the trial record. This Court's discussion was not intended as fixing any rule for jury selection and it must be noted that in general practice the method followed in Roseboro is frequently criticized as being unduly wasteful of the court's time and fails to accomplish any useful purpose. Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him. The actual conduct of the trial must be left largely to the sound discretion of the trial judge so long as the defendant's rights are scrupulously afforded him.

Under the trial court order, the method of selection offered the defendant full opportunity to exercise all his constitutional rights. The panel selected did not contain any juror to which he had objection. He fails to allege that he had exhausted his peremptory challenges.

We do not know of any rule or authority which requires the North Carolina trial court in any criminal case, capital or otherwise, to follow the voir dire procedure in jury selection which the Court has described in Roseboro. The federal rule with respect to jury selection in criminal cases provides:

"(a) Examination. The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper." Fed. Rules Crim.Proc. rule 24(a). Citing Pointer v. United States, 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208 (1894); Hanson v. United States, 271 F.2d 791 (9th Cir. 1959).

The following is quoted from Matthews 1 "How to Try A Federal Criminal Case", Section 399, page 550:

"The fundamental rules governing the selection of trial jurors appear in the following oft-quoted language of Mr. Justice Harlan, in Connors v. United States (158 U.S. 408, 39 L. Ed. 1033, 15 S.Ct. 951): `It is quite true, as suggested by the accused, that he was entitled to be tried by an impartial jury, that is, by jurors who had no bias or prejudice that would prevent them from returning *732 a verdict according to the law and evidence. It is equally true that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. * * *'"

Apparently, the purpose of Judge Copeland's order was to reduce the time consuming procedure so apparent in Roseboro. Assignment of Error No. 3 is not sustained. State v. Peele, 274 N.C. 106, 161 S.E.2d 568; Pointer v. United States, supra; State v. Munch, 57 Mo.App. 207.

In the trial, verdicts and judgment, we find

No error.

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