
    STATE v. JESSE UPTON.
    (Filed 22 December, 1915.)
    1. Homicide — Murder—Solicitors—Demand for Conviction in Second Degree— Trial — Capital Felony.
    Where tbe defendant is indicted for murder in tbe first degree and tbe solicitor at tbe time of calling tbe case for trial announces be will not ask for a verdict in tbe first degree, and an entry of record is accordingly made, tbe trial is not for a capital felony.
    2. Homicide — Harder—Mistrials—Court’s Discretion — Appeal and Error.
    Where, without the knowledge of the court or tbe parties, and after the jury has been selected, sworn, and impaneled, it is discovered that one of them is disqualified to act, for nonresidence in tbe State, and the trial is for a homicide less than a capital felony, it is within the sound discretion of tbe court to withdraw a juror and order a mistrial, which is not subject to review on appeal. If for a capital felony, the court may withdraw a juror and order a mistrial, when “necessary to attain tbe ends of justice,” and upon exception duly taken, find tbe facts, from which an appeal lies as a mátter of right. If no such exception is aptly taken, it is within the court’s discretion to permit, thereafter, the objecting party to challenge tbe juror.
    3. Criminal Law — Homicide—Trials—Mistrials—Orders of Court — Appeal and Error.
    The action of tbe trial judge, on a trial for homicide, in withdrawing a juror, discharging the other jurors, and again beginning the trial, is in effect an order for a mistrial, whether these words were used by the court or not.
    Appeal by defendant from Cline, J., at Spring Term, 1915, of SwaiN.
    
      Attorney-General BicTsett, Assistant Attorney-General Calvert, and Martin, Rollins & Wright for the State.
    
    
      Bryson & Blade and A. S. Patterson for defendant.
    
   Clare:, C. J.

The defendant was indicted for murder in the first degree, but when the case was called, and before any jurors were selected, the solicitor announced that he would not ask for a verdict of murder in the first degree, and an entry was made in the record to that effect. It follows that the trial was not for a capital felony. S. v. Hunt, 128 N. C., 584; S. v. Caldwell, 129 N. C., 682.

When the case was called for trial both sides announced themselves in readiness. A jury was selected, sworn, and impaneled. After the solicitor had read the indictment the attention of the court was called to the fact that one of the jurors was not a citizen and resident of Swain County. This was not previously known to the counsel on either side nor to the court. Counsel on both sides expressed the opinion to the court that if the trial were continued with such juror in the box the irregularity would vitiate the result. Thereupon the court ordered a mistrial and discharged the juror and the entire jury and began the trial of tbe case anew, eacb one of tbe jurors being passed upon by tbe State and defendant. Tbe defendant made no exception wben tbe juror was withdrawn and made bis exception only wben tbe new jury was impaneled.

Tbe court did not use tbe words “mistrial ordered,” but bis withdrawal and discharge of tbe juror and tbe discharge of tbe other jurors and beginning tbe trial over again was an order for a mistrial.

Tbe trial was for a felony, not capital, and it was discretionary with tbe judge to order a mistrial. S. v. Collins, 115 N. C., 716, citing S. v. Johnson, 75 N. C., 123, where Pearson, Q. J., said that if on tbe trial for a capital offense tbe judge directs a mistrial, be i.s required to find the facts, and bis action is subject to review on appeal; but that on trial for a felony not capital, or for a lesser offense, tbe discretion of tbe presiding judge in making a mistrial is not subject to review, for be has tbe discretion to do so whenever be believes it proper in furtherance of justice, citing S. v. Weaver, 35 N. C., 203; Brady v. Beason, 28 N. C., 425.

Even if this bad been a trial for capital felony, it would not have been error for tbe court to have made a mistrial “wben necessary to attain tbe ends of justice.” S. v. Guthrie, 145 N. C., 495 ; S. v. Tyson, 138 N. C., 627, which is cited in S. v. Dry, 152 N. C., 813. In tbe last case a prisoner on trial for capital felony absented himself from court. On discovery of this tbe judge asked bis counsel if be intended to except because of tbe prisoner’s absence, and be said that be did. Tbe judge then ordered a mistrial, and refused a motion for tbe discharge of tbe prisoners, there being two on trial. This Court said: “In reply to tbe inquiry of tbe court, tbe counsel of tbe prisoners, who were on trial together for tbe homicide, committed jointly, frankly admitted that they would insist upon tbe nullity of tbe whole proceeding because of tbe absence of one of them from tbe courtroom during part of tbe time tbe jury was being selected.” Tbe Court further said: “If their contention was correct that tbe further trial would be a nullity, and tbe prisoners cannot be heard to tbe contrary, tbe prisoners were not in jeopardy and tbe mistrial was properly ordered; but that if tbe temporary absence of tbe prisoner by bis own volition would not have bad that effect, still tbe court might well, in tbe interests of justice, refuse to go on with an important trial with such an objection pending, whose effect would be to place tbe State at a great disadvantage.”

In that case tbe Court also said that in tbe Federal courts and in most of tbe other States a mistrial in a capital felony rests in tbe sound discretion of tbe trial judge, as it does in all other cases with us, and that while we have not gone that far, we have modified tbe stringent rules heretofore prevailing, and that a mistrial in a capital felony can now be made wben it is necessary to attain tbe ends of justice. However, in this case, which is not for a capital felony, the mistrial was in the discretion of the judge.

We would not, however, be understood as holding that if the trial had proceeded with the juror in the box not excepted to, it would have vitiated the verdict. S. v. White, 68 N. C., 159, where a nonresident sat on the jury.

The counsel for the State contend rightly that when an incompetent juror is permitted by the defendant to try his case without objection it does not vitiate the verdict. S. v. White, 68 N. C., 159; S. v. Douglas, 63 N. C., 501.

In S. v. Lambert, 93 N. C., 618, where the-defendant was tried and convicted of murder in the first degree the Court held: “A challenge to a juror for cause must be made in apt time. It is too late after the juror has been accepted by the prisoner, and has served on the trial. When the ineompetency of the juror is not discovered until after the verdict, it is a matter of discretion for the judge to grant a new trial or not. His refusal to do so is not reviewable. In that case the juror on his voir dire, after being' sworn and before taking his seat in the jury box, remarked, loud enough to be heard by the court and counsel, that he was not 21; but no objection was made to the juror by the prisoner till after the verdict. The court held that when the juror came to the book to be sworn on his challenge for cause, the prisoner should then and there have made known his objection, and, not having done so, the prisoner cannot afterwards except. This is subject, however, to the rule that the court can in its own discretion afterwards make a mistrial, even in a capital case, if the defect was to a disqualification of the jurors, which was “not discovered until after he was tendered and accepted by the prisoner and sworn,” adding that even after that, if the prisoner had moved for leave to challenge the juror for cause, the court could allow the challenge in its discretion and not as a matter of right, citing S. v. Adair, 68 N. C., 68.

S. v. Lambert was cited and approved in S. v. Council, 129 N. C., 517, which cited many eases, as where the juror had been incompetent because a minor, S. v. Lambert, 93 N. C., 618; or an atheist, S. v. Davis, 80 N. C., 412; or not a freeholder, S. v. Crawford, 3 N. C., 485; or a nonresident, S. v. White, 68 N. C., 159; or related, Baxter v. Wilson, 95 N. C., 137, and there have been cases to the same effect since, S. v. Maultsby, 130 N. C., 665; S. v. Lipscomb (Walker, J.), 134 N. C., 697, and there are still others.

The other exceptions do not require discussion.

No error.  