
    STATE v. COUNCIL.
    (Filed October 29, 1901.)
    1. REHEARING — Supreme Court — Appeal—Criminal Law.
    
    Petitions to rehear are not allowable in criminal action's.
    
      2. SUPREME COURT — Opinions—Per Gm'iam — Acts 1893, Git. 319, See. 5 — Criminal Law.
    
    The supreme court justices are not required to write their opinions in full.
    2. NEW TRIAL — Supreme Court — Newly-discovered Evidence — Criminal Law.
    
    The supreme court will not grant new trial in criminal actions for newly-discovered evidence.
    4. SUPREME COURT — Per Curiam Opinions — Homicide—Appeal.
    A person convicted of a capital felony is not prejudiced by the fact that the supreme court renders a per curiam opinion affirming the conviction.
    5. JURY — Incompetent Juror — Exceptions and Objections.
    
    The manner in which a juror is sworn is not ground for objection after verdict.
    6. SUPREME COURT — Appeal Dismissed — Exceptions and Objections — Appeal.
    The supreme court will sometimes decide the points presented in the case on appeal, though the appeal be dismissed.
    Douglas, J., dissenting.
    ON petition to rehear. Petition dismissed.
    
      E. K. Bryan, for the petitioner.
    
      Robert D. Gilmer, Attorney-General, and N. A. Sinclair, in opposition, for the State.
   Olakk, J.

The Attorney-General moves to dismiss the petition to' rehear on the ground that by the uniform practice of the Court, observed from its beginning till now, petitions to rehear are not allowable in criminal actions.

An appeal to this Court is a right. Not so as to a petition to rehear (Herndon v. Insurance Co., 111 N. C., 384; Solomon v. Bates, 118 N. C., 321), which is an appeal from this Court to itself and only allowable ex necessitata when there is no other possible relief from its judgment. In criminal actions, there is the fullest power vested in the Executive not only to relieve from a judgment of this Court, as could be done by us upon a rehearing, but the facts can be inquired into as the Court could not do, and considerations of equity and of mercy may have a weight which can not be presented on a rehearing in a Court.

In State v. Jones, 69 N. C., 16 (for murder), it was held that this Court had no power to' rehear a criminal case, Reade, J., saying: “Neither the learned counsel for the prisoner nor the Attorney-General has been able to cite any authority showing that we have the power to rehear the case.” This has been uniformly followed ever since — as it had been up to that time — and this case is cited in State v. Starnes, 94 N. C., by Smith, C. J., who says (page 982): “N> such proposition in reference to criminal prosecutions has ever been made or entertained, so far as our investigations have gone, in this Court. The absence of a precedent (for we can not but suppose such application would have been made on behalf of convicted offenders, if it had been supposed that a power to grant them' resided in the appellate Court), is strong confirmatory evidence of what the law was understood to be by the profession.” The particular point before the Court inj State v. Starnes was the motion for a new trial for newly discovered evidence in the Supreme Court on a conviction for rape, which motion was denied in the language above cited, and tbis bas been cited as authority (State v. Gooch, 94 N. C., 1008; State v. Starnes, 97 N. C., 423; State v. Rowe, 98 N. C., 630), and bas been observed, without filing an opinion, uniformly since, both as to new trials, for newly discovered evidence and rehearings, both of which are allowed (but with certain well-defined restrictions) in civil actions, but never on the criminal side of the docket. It would indeed be an anomaly if the Court can not grant a new trial in criminal cases for newly discovered evidence, but could grant a rehearing. That the practice in this matter has been unbroken for nearly one hundred years is of itself, as the Court has already observed — speaking through Mr. Justice Reade and Chief Justice Smith — a strong argument why we should follow the precedents.

Petitions to rehear were first authorized, in the present terms of the statute at least. Rev. Code, Chap. 33, sec. 1. That with full knowledge of the construction placed upon that provision by the uniform practice of the Court and the decision in State v. Jones, supra, it was repeated in the same terms in The Code, sec. 966, it is clear that the profession and the General Assembly and the Code Commission acquiesced in that construction. If, however, the Court were not bound by a century of legislative acquiescence, as well as judicial construction, and, viewed as a new question, the Court might well pause assuming a jurisdiction over the strenuous applications of defendants in criminal actions after the highest Court has decided against them. It is the concurrent testimony of successive Governors that such applications have been the most troublesome matters they have had to deal with, yet they have means of investigation and examination and a leisure which is denied to this Court.

However, legislation has now clearly deprived us of the power, if we had ever possessed it, of granting rehearings in criminal actions. By the Laws of 1887, Chap. 192, se'e.3, amending Tbe Code, sec. 962, it is provided: “In all cases of affirmance of a sentence for a capital felony, tbe Clerk of tbe Supreme Court at tbe same time that tbe decision of tbe Supreme Court is certified down to tbe Superior Court, shall send a duplicate thereof to tbe Governor, who shall immediately issue bis warrant under tbe Great Seal of tbe State to tbe Sheriff of tbe county in which tbe appellant was sentenced, directing him to execute tbe death penalty on a day specified in said warrant, not less than thirty days from the date of said warrant; but this shall not deprive tbe Governor of tbe power to pardon or reprieve tbe defendant, or to commute tbe sentence.”

By virtue of Chapter 41, Laws 1887, and Rule 48 of this Court, opinions are certified down on tbe first Monday in each month, provided they shall have been on file ten days. As opinions are usually filed on Tuesdays, they remain not less than thirteen days and not more than forty-two days in fieri, and, in that time, if there is error (and in criminal cases it should be scrutinized in that time) it can be observed and tbe matter called to tbe attention of tbe Court, which, in such cases, on sufficient cause. shown, has more than once called up tbe opinion for reconsideration. If this is not done, tbe remedy is by application to tbe Governor. After tbe opinion is certified to tbe Governor for execution, tbe matter is out of tbe jurisdiction of tbe Judicial Department, for be is required to issue his warrant immediately to tbe Sheriff. One Judge of this Court can not, upon an application to rehear, issue bis mandamus or bis injunction to restrain tbe Governor from proceeding as tbe statute has expressly directed him to do, upon reception by him, of tbe certified opinion of tbe Court. In this very case, tbe suspension of execution has been by tbe courtesy of tbe Governor in granting a respite under bis prerogative, and not by virtue of tbe order of a member of this Court. That a Judge of -- tbis Court could not issue bis order to tbe Governor commanding bim not to proceed, is conclusive tbat we bave no power over tbe matter after tbe certificate of tbe opinion of tbis Court bas gone to bim. Tbe matter bas tben gone into bis bands, and tbe public bistory of tbis case shows tbat tbe Executive bas fully and carefully investigated all claims made for leniency. Eurtber action is left by tbe Constitution and laws with bim. No criticism is intended upon tbe action of tbe member of tbe Court wbo granted tbe order for a- rebearing, for it was desirable tbat tbis point should be squarely presented and finally set at rest, which might as well be done in tbis case as in another. .

: Tbe same is true as to convictions for les'ser offenses, for the same section (section 3, Chap. 192, Laws 1887) provides:; “In criminal cases tbe Clerk of tbe Superior Court, in all cases where tbe judgment bas been affirmed (except where tbe conviction is of a capital felony) shall forthwith, on receipt of tbe certificate of tbe opinion of tbe Supreme Court, notify tbe Sheriff, wbo shall proceed to execute tbe sentence appealed from.” Thus showing tbe evident clearly expressed intention tbat tbe matter should tben be in tbe bands of tbe Executive Department, and execution of tbe judgment proceed without interruption, unless by executive clemency. It is otherwise as to civil matters, as to . which, by tbe same statute, no action can be taken till a new , judgment is rendered by tbe Court below.

Counsel for tbe prisoner seem to think it a grievance tbat a per curiam, decision, instead of an opinion, was filed in this case, 128 N. C., 616. But if tbe General Assembly could still require tbe Court to file opinions (which it can not do since the Constitution of 1868, Horton v. Green, 104 N. C., 400; Herndon v. Ins. Co., 111 N. C., 384), tbe same ; authority has relieved the Court of tbe former statute, by enacting (Laws 1893, Chap. 379, sec. 5) : “The Supreme Court i Justices shall not be required to write their opinions in full except in cases in which they deem it necessary.”

As the Court had already held, in the cases above cited, that the General Assembly, under the present Constitution had no control over such matters, this has only a persuasive effect on us as the opinion of a co-ordinate branch that unnecessary opinions had been filed, taxing alike the public treasury and the time of the profession. ' In deciding what cases shall be disposed of by a per curium decision without an opinion, we have always been guided, not by the importance .or unimportance of the matter at issue, but by considering whether or not the propositions of law presented had not been already frequently decided. Accordingly, we find that in other States appeals in capital cases , have not infrequently gone off on a per curiam decision without opinion, and in some States it is always done when the judgment is affirmed, and in England no appeal has ever been allowed in criminal cases, the remedy being by application for executive clemency.

When the appeal was heard at last term, the point most pressed was the motion for a new trial for newly discovered evidence. It had been well settled that such motions in criminal cases would not be heard in this'Court (State v. Starnes, supra), and that even in civil cases such motions would bé disposed of by per curiam order. Herndon v. Railroad, 121 N. C., 499; Brown v. Mitchell, 102 N. C., 347; Ferebee v. Pritchard, 112 N. C., 83, and many other cases, and the same course was necessarily pursued in this case.

Another point was made, though properly not much relied on, that one of the jurors had not been properly sworn. This-has been more pressed on this argument, but it was presented and considered and decided by us before. . It was so well settled that if there was such irregularity, it was cured by not objecting in apt time, that we deemed no repetition of adjú-dications necessary. Tbe juror was sworn in presence of prisoner and bis counsel, and to let bim acquiesce in tbe manner in wbicb tbe oatb was taken, and tben object after verdict, would simply make a trial not a decision upon tbe merits, but a series of pitfalls for tbe State. Not having spoken when be was called upon to speak, tbe prisoner should not be beard after tbe verdict has gone against bim. State v. Boone, 82 N. C., 637; State v. Patrick, 48 N. C., 443; Briggs v. Byrd, 34 N. C., 377; State v. Ward, 9 N. C., 443. Even where a juror is incompetent because a minor (State v. Lambert, 93 N. C., 618), or an atheist (State v. Davis, 80 N. C., 412), or not a freeholder (State v. Crawford, 3 N. C., 485), or a nonresident (State v. White, 68 N. C., 158), or related (Baxter v. Wilson, 95 N. C., 137), and these objections are not discovered until after verdict, setting aside tbe verdict, rests in tbe discretion of tbe trial Judge. State v. Lambert, supra, and many cases there cited. Eor a stronger reason, this must be so when tbe objection is merely to tbe manner in which a competent juror is sworn, when tbe oatb is taken in tbe prisoner’s presence who makes no objection. This is like tbe case of incompetent evidence admitted without objection, and tbe like. In State v. Gee, 92 N. C., 756, where a witness was not sworn at all, tbe Court held that this was not ground of objection after verdict.

Indeed, it appears from tbe affidavit of tbe Clerk of tbe Court that tbe juror was sworn in tbe proper manner, and tbe manner of bis oatb taken before tbe Judge afterwards, indicates as much. Besides, there is no finding of fact by tbe Judge as to tbe manner in wbicb tbe oatb was taken (State v. DeGraff, 113 N. C., 689), wbicb tbe appellant should have asked for if he wished tbe action of tbe Judge reviewed. Whitehead v. Hale, 118 N. C., 601.

Though tbe petition to rehear must be dismissed, we have discussed tbe objection, as has sometimes been done when an appeal is dismissed. State v. Wylde, 110 N. C., 500, and cases there cited.

Petition Dismissed.

Douglas, J.,

dissenting. I can not concur in the opinion of the Court, because my convictions are to the contrary. I readily concede that this decision settles the question that, in ■no case can a rehearing be had in a criminal action, and I think it better that it should be settled one way or the other. •■And yet, knowing that rehearings are constantly granted, in civil cases, and finding no distinction between civil and criminal actions, either .in the statute or the rules of this Court, •I am unwilling to say, even by implication, that property is more valuable than life and liberty, or entitled to a greater degree of protection. The argument that in criminal eases .the pardoning power of the Governor fulfills the purpose of •a rehearing, is purely ab inconvenienti, and, to my mind, does not meet the ends of justice. Pardon is an act of mercy, and so far from establishing the innocence of anyone, presupposes his guilt. The Governor may restore to him his liberty, •but not his character.

- What a defendant asks in a rehearing is that he may have a fair trial; and yet, no matter how clearly his innocence may appear, nor how great the error we ourselves may have committed, we can give him no relief. He must throw himself at the feet of the Executive and beg the poor favor of passing the remainder of his life in the penitentiary, or, at best, wandering through the world a social outcast, bearing the brand of a convicted felon. This may become the law, but through no áct of mine.

. As the petition to rehear is dismissed, it is useless for me to discuss the merits of the case. My reasons for directing it ■to be docketed are given at length in the original order, which is hereto attached, to-wit:

■ “This is a petition made in apt time and proper,form to rebear a criminal case, wherein tbe petitioner is under sentence of death. As this case was decided upon a per curiam order while I was absent from the bench, I am ignorant equally of the grounds of the decision and the reasons and authorities influencing the Court. However, I have no hesitation in saying that, in my opinion, this is a proper case to be reheard, but I feel great hesitation, in ordering it to be docketed in view of the decision of this Court in State v. Jones, 69 N. C., 16. That case is directly in point, and ex■pressly holds that “the Supreme Court has no power to entertain a petition to rehear a criminal action.” It is but just to counsel as well as myself to say that that decision does not meet my approval, in spite of my respect and admiration ■for the great Court that delivered it. In fact, it scarcely seemed to satisfy the Court itself, as the learned Justice writ ing the opinion, after deciding this vital point against the petitioner, proceeds to discuss the points raised in the petition as fully as if the petition had been allowed.
“This case was decided upon no precedents whatever, as there were admittedly none then, and I am able to find none other since. It is true, Jones’ case is cited in State v. Starnes, 94 N. C., 973, 981; and in State v. Rowe, 98 N. C., 629, 630; but these latter cases relate exclusively tO' motions for new trial for newly discovered evidence, and have no apparent •bearing upon the question of rehearing. The reasons given by the Court are as follows: ‘Neither the learned counsel for the prisoner nor the Attorney-General has been able to cite any authority showing that we have the poiuer to rehear the case. In equity cases and in civil actions the practice has been common, but in criminal cases never to our knowledge. In the former cases, this Court makes decrees and passes judgments, which •may be reviewed. But in criminal cases w© do not pass judgment. Such cases are ■ sent up for our opinion only, wb'icb we certify to the Court below, and there our jurisdiction ends.’ Whatever force these reasons might then have had, they have none now to my mind. This Court constantly grants rehearings in civil actions, where it passes no judgment whatever, and makes no decrees. Rules 52 and 53, providing for rehearings, make no distinction between civil and criminal cases, and I see none. If the title to a chicken were, involved, I could grant a rehearing;. but as a human life is at stake, I am utterly powerless» To my mind, such a distinction finds no just foundation in law, in public policy or in humanity. The rights of property can never be more sacred than the security of the person, as they have no independent existence, but exist only in relation to the owner.
“The guilt or innocence of the prisoner is not for me to decide, nor can I properly consider the facts that the Judge who tried the prisoner has grave doubts of his guilt, that the Solicitor who' prosecuted him does not believe that he is guilty, and that the jury that convicted him rendered a verdict only after a distinct understanding among themselves and with the Court that it should be coupled with a recommendation to mercy. These facts, however strong and.significant, appeal only to executive clemency, and not to judicial action.
“Plowever much a Justice may dissent from the decisions of 'a Court, and however full his right of dissent when sitting with the Court, he is bound by them when acting in his individual capacity. But docketing a case is not overruling any opinion that may be involved. It is simply bringing the matter before the Court for such action as it may see fit to take. In no other way whatever can it be brought before the Court. Even if the Court were in favor of a rehearing, it could not act under its rules unless some individual Judge took the responsibility of ordering the case to be docketed. Peeling as I do, I think the Court should have an opportunity to pass upon the question, which can never be presented more-clearly or more forcibly.
“I am somewhat influenced in this course by the fact that the Governor frankly states that he will reprieve the prisoner if I order his petition to be docketed, but not otherwise; and by the further fact that eminent members of the bar think that criminal eases can be reheard, a view in which 1 understand His Excellency to fully concur. Unless his case is docketed, the petitioner will be hanged next Monday, and this Court would then be powerless to correct any error that may exist, no matter how great or manifest. The petitioner has been convicted of what is properly regarded as the highest crime known to our law, and if guilty should be punished. But he is entitled to a fair trial, and if innocent, his execution would inflict a wrong which eternity alone can repair. Under such circumstances, I feel it my duty to act, no matter, how great may be my reluctance or the responsibility which it involves.
“The Clerk will docket this case, and file this opinion with the petition. He will also issue the proper notices, including one to the Governor.
“This 8th day of August, 1901.
“R. M. Douglas,
"Associate Justice  