The opinion
Adams, J.,
concurring: Four members of the Court agree in saying that a new trial should be granted for misdirection of the jury. Under these circumstances the assignment of error noted in the record as an exception which was not taken at the trial would probably not be adverted to if it were not for the gravity of the offense related in the memorandum; but since the prisoner has urged this incident as setting forth an invasion of his rights by the alleged abrogation of a law “which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial,” it has been thought not inexpedient to give expression to the divergence of opinion not unreasonably produced by this deplorable occurrence.
It may be said first of all that the conduct of the bystanders who perpetrated or encouraged the assault upon the prisoner was utterly indefensible. The Superior Court was in session; the judge was on the bench; the prisoner was on trial in the orderly course of criminal procedure; there was no, reason to apprehend a miscarriage of justice. As the evidence was developed friends of the dead child made the first move, no doubt under the natural impulse of uncontrolled passion; but even their violent and overwhelming revulsion of feeling cannot justify or condone the attempt to seize the prisoner and summarily to drag him from the presence of the court.
The crime for which the prisoner was prosecuted was committed 8 December, 1927. A few days afterwards he was put on trial for murder; he was represented by attorneys appointed by the court and was given every opportunity to prepare his defense. During the trial he was *569 assaulted. He had previously made no motion for a continuance, and after the assault he made no motion for a mistrial, and took no exception to anything that was done or said in reference to the disturbance. Even after the verdict was returned he moved neither to set it aside nor to grant a new trial. The case on appeal was settled about two weeks after the term had expired, and the judge of his own volition, and not at the instance, of the prisoner, then set out in the record a statement of facts relating to the assault. After this memorandum was made a part of the record the prisoner for the first time made the point that the judge had committed error in not ordering a mistrial of his own motion after the demonstration in the courtroom had taken place.
It will be seen, then, that the initial and fundamental question is this: After his conviction for murder in the first degree, is' the prisoner entitled as a legal or constitutional right to a new trial on the ground that the presiding judge did not, of his own motion, order a mistrial on account of the assault and demonstration of bystanders in the courtroom, when the prisoner did not, either during the trial or at any other time, move the court to order a mistrial, or to set aside the verdict, or to grant a new trial, and did not except to anything growing out of the disorder or assign any reason for his failure to make such motions or to take such exceptions?
In considering this question we must not permit ourselves to be borne away by a wave of indignation or influenced by “one pulse of passion,” for “What Reason weaves, by Passion is undone.” In the light of recognized principles let us consider the undisputed facts. The memorandum is set out in another opinion and need not be repeated here. We may be able to avoid some “chaos of thought” by keeping in mind this statement of the trial judge: “This memorandum is made by the court of its own motion for the information of the Supreme Court, as no exception was taken by the prisoner at the time.” This ought to be final. Neither the judge nor the prisoner nor the State treated the exception as entered at, any time during the trial. One of the strong points in the argument of the Assistant Attorney-General was the fact that no motion was made in the court below, the denial of which would constitute grounds for alleged error. If this Court, without consent of the prosecution, under the guise of “administering justice” should insert into the record a so-called exception which first occurred to the prisoner’s counsel several days after the trial court had adjourned, it would burden the practice with an innovation which, I submit, has no support in precedent or principle. It would introduce the thralldom of an uncertain and variable appellate discretion which would serve as a treacherous and intolerable substitute for the administration of established law.
*570 After a reasonably painstaking investigation I have found no authority, and none has been cited or brought to my attention, which convinces me that this question should be answered in the affirmative. The controlling principle, as I understand it, is this: As the prisoner did not except during the trial, and has not assigned a reason for his failure to do so, the disorder in the courtroom would not entitle him to a new trial as a constitutional right unless in effect it wrought a dissolution of the court or a loss of jurisdiction so as to make the trial a nullity and the proceedings coram non judice. Frank v. Mangum, 237 U. S., 309 , 59 Law Ed., 969. The record discloses neither of these conditions; and a departure from this settled principle would tend to engraft upon our jurisprudence a practice which would be charged with the possibility of the gravest results.
The case of Moore v. Dempsey, 261 U. S., 86 , 67 Law Ed., 543, sets forth conditions under which the principle just referred to may be applied. In that case five negroes who had been convicted of murder in the first degree were sentenced to death. Omitting more than a bare reference to the circumstances under which the homicide was committed, the arrest by the mob of the defendant’s counsel and his hasty departure to save his life, I quote the salient facts as given in the opinion r “Shortly after the arrest of the petitioners a mob marched to the jail for the purpose of lynching them, but were prevented by the presence of United States troops and the promise of some of the Committee of Seven and other leading officials that, if the mob would refrain, as the petition puts it, they would execute those found guilty in the form of law. The committee’s own statement was that the reason that the people refrained from mob violence was 'that this committee gave our citizens their solemn promise that the law would be carried out.’ According to affidavits of two white men and the colored witnesses on whose testimony the petitioners were convicted, produced by the petitioners since the last decision of the Supreme Court, hereafter mentioned, the committee made good their promise by calling colored witnesses and having them whipped and tortured until they would say what was wanted, among them being the two relied on to prove the petitioners’ guilt. However this may be, a grand jury of white men was organized on 27 October, with one of the Committee of Seven and, it is alleged, with many of a posse organized to fight the blacks, upon it, and, on the morning of the 29th the indictment was returned. On 3 November the petitioners were brought into court, informed that a certain lawyer was appointed their counsel, and were placed on trial before a white jury— blacks being systematically excluded from both grand and petit juries. The court and neighborhood were thronged with an adverse crowd that threatened the most dangerous consequences to any one interfering with *571 the desired result. The counsel did not venture to demand delay or a change of venue, to challenge a juryman, or to ask for separate trials. He had had no preliminary consultation with the accused, called no witnesses for the defense, although they could have been produced, and did not put the defendants on the stand. The trial lasted about three-quarters of an hour, and in less than five minutes the jury brought in a verdict of guilty of murder in the first degree. According to the allegations and affidavits there never was a chance for the petitioners to be acquitted; no juryman could have voted for an acquittal and continued to live in Phillips County, and if any prisoner, by any chance, had been acquitted by a jury, he could not have escaped the mob.”
These facts give the background of a pretended trial which was indeed a “mask,” and “empty form,” a travesty, a sheer mockery of justice. The circumstances as recited reveal a manifest subversion of justice because the prisoners were deprived of their defense and hurried to conviction under the pressure of a mob, the lives of the jurymen were endangered if, by any chance the prisoners should be acquitted, and to this pressure the judge himself yielded. Hence said the Court: “If the case is that the whole proceeding is a mask — that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and that the State courts failed to correct the wrong — neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding the immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.”
In the case before us neither jury, nor counsel, nor judge was swept to the fatal end by anything approaching an irresistible wave of public passion. It would be extravagant and fanciful to say that the judge abdicated, or surrendered, or succumbed. The prisoner’s counsel do not pretend that by fear, or intimidation, or, indeed, by any other means they were prevented from making any motion or entering any exception deemed necessary to the enforcement of the prisoner’s rights; and certainly, if the judge’s finding of the facts is not to he disregarded the jury was neither terrorized nor coerced into a verdict of guilty. The record is that during the demonstration the jury sat in perfect order and did not appear to" be at all disturbed. The disorder was promptly suppressed; six or seven members of a military company came into the courtroom and formed a cordon around the prisoner; and the trial then proceeded in an orderly manner. There was no other disorder or demonstration of violence. In his charge the judge warned the jury in emphatic words not to be influenced by what had occurred; and granting that the effect on their minds cannot be definitely determined, it is not unreasonable to conclude, as the Court said in Harrison’s case, that the *572 impressive conduct of the judge bad far more influence upon the minds of the jury than the impulsive conduct of some of the audience. S. v. Harrison, 145 N. C., 408 . However this may have been, there was no such dissolution of the court, or surrender of its jurisdiction, or subversion of justice as made it necessary to set aside its subsequent proceedings, or such as reduced them to a nullity. If this conclusion is correct it follows that the judge was not as a matter of law required, of bis own motion, to withdraw a juror and order a mistrial. If be bad done so in the absence of a motion or an exception by the prisoner the defense of former jeopardy would no doubt have been interposed on the second trial. S. v. Jefferson, 66 N. C., 309 .
If the jurisdiction of the Superior Court was not lost in the course of the proceedings and the prisoner was not prevented from asserting bis rights be cannot be heard to say for the first time, after the case on appeal was settled that the judge should voluntarily have entered exceptions or made orders which, bad not been requested. Not one of our decisions sustains the prisoner’s contention. As said in S. v. Harrison, supra, it is but fair to the judge and essential to the administration of justice that the prisoner, unless prevented by menace or fear, should in apt time make bis objections known. In S. v. Wilcox, 131 N. C., 707 , the facts were that for the purpose of breaking the force of counsel’s argument a disorderly crowd entered upon a series of demonstrations within and without the courtroom which were of such proportions as to warrant a new trial. No motion was made in the lower court to set aside the verdict, the assigned reason being that the prisoner would at once have met a violent death. In effect this circumstance was regarded as tantamount to an exception taken at the time, for, on appeal to tbis Court, the Attorney-General agreed to consider the motion as having been entered at the proper time in the court below, and upon tbis theory the decision was made to rest. It is not necessary to consider a long line of cases in which new trials were granted for misconduct of counsel, jury, witness, or judge upon exceptions noted during the course of the trial.
As no case has been cited from our reports which upholds the prisoner’s contention, let us look elsewhere. I refer to the well known case of Frank v. State ( 80 S. E., 1016 ), in which a new trial was urged on the ground of mob domination and denied, and to the motions for a new trial ( 83 S. E., 233 ), and for setting aside the verdict (ibid., 645), merely to observe that the proceedings were shot through with objections taken during the trial. In Collier v. State, 42 S. E., 226 , the plaintiff in error was on trial for rape, and while the prosecutrix was testifying her husband assaulted or attempted to assault the defendant. An excited crowd in the courthouse moved toward the defendant as if determined to *573 take him away. A new trial was granted, but on the ground that after the disturbance bad subsided, and while the trial was in progress the defendant moved the court to declare a mistrial on account of the demonstration, and refusal to grant the motion was assigned as error. So it was in Vaughan v. State, 20 S. W., 588 ; an affidavit that the jury bad been improperly influenced was considered by the trial judge in an application for a new trial. In the opinion it is said: “Affidavits are admissible for that purpose, and when considered by the trial court and brought up on the record by bill of exceptions, questions presented by them are brought before us on appeal.” For misconduct of “a. large crowd of persons in the courtroom” a new trial was given in Manning v. State, 39 S. W., 118 ; but there, also, the appellant’s counsel asked for a bill of exceptions to the court’s refusal to suppress the demonstration. Fountain v. State, 107 At., 554 , presents a case of attempted domination by a mob, but the questions reviewed arose upon the refusal of the trial court to grant the defendant’s application for a stay of proceedings. In S. v. Weldon, 74 S. E., 43 , it was made to appear that the prisoner’s counsel while going to the courthouse through a dense crowd “beard expressions in regard to lynching,” which convinced bim tbat, if be should ask for the three days of preparation allowed by law, the prisoner would be lynched, and under the compulsion of this fear be gave up tbat most vital right and went into trial without knowledge of the defense. For this reason no error was assigned on the trial, but the record was referred back to the circuit judge for a report of the facts. 71 S. E., 73 . The report was made and the appellate court then said: “After much consideration there seems to be no escape from the conclusion that this court cannot now consider the grounds for a new trial set out in the exceptions and affidavits, for the reason that it does not appear that they have ever been passed upon by the circuit court.” Owing to the gravity of the crime the appeal was dismissed without prejudice to any right-of the defendants to move before the circuit court for a new trial. 71 S. E., 831 . After a new trial bad been denied by the lower court the appellate court upon exceptions duly presented awarded a new trial. 74 S. E., 43 . The decision in substance adheres to the principle stated in S. v. Wilcox, supra. And so in other cases an extended review of which under the circumstances is obviously infeasible.
If, as was said in Frank v. Mangum, supra, a trial is in fact dominated by a mob which intimidates a jury and coerces a judge into submission so tbat bis control of the trial is lost and there is an actual interference with the course of justice; or as was said in Moore v. Dempsey, supra, if judge, jury and counsel are “swept to the fatal end,” there is such a want of due process of law as entitles the prejudiced party to a new trial, although no exception was taken during tbe course of tbe proceedings.
*574 If jurisdiction is not lost, if the disorder is suppressed by the prompt and vigorous action of the presiding judge, and the trial thereafter proceeds to the end in the usual orderly way, and the complaining party expresses no objection, makes no motion, enters no exception, and fails to assign a reason for not doing so, be is not entitled to have the verdict and judgment set aside as a constitutional right by a method which has aptly been styled “a post mortem attempt to get another trial.” If, in either case, an exception is taken on the trial, it is the duty of the appellate court to consider it when it is duly set out in the case on appeal as an assignment of error. If an exception is not taken and a satisfactory reason is given for the omission the procedure would probably be similar to that in S. v. Wilcox, supra, or S. v. Weldon, supra. Whether the circumstances recited in the memorandum would have assured the prisoner a new trial if exception bad been taken at the proper time and incorporated in the record is not presented for decision.
There is another phase of the question: It is contended that a new trial may be granted by virtue of Art. IV, sec. 8, of the Constitution. The entire section is as follows: “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said court over ‘issues of fact’ and ‘questions of fact’ shall, be the same exercised by it before the adoption of the Constitution of one thousand eight hundred and sixty-eight, and the Court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts.”
It will be noted that the first part of the section confers jurisdiction to review decisions upon appeal; but upon the point raised by the prisoner no decision was made. The last clause confers power to issue any remedial writs necessary to give the Court a general supervision and control over the proceedings of the inferior courts. These remedial writs, such as certiorari and supersedeas, mandamus, the writ of prohibition, and the old writ of error until superseded by the statutory appeal, are usually issued when there is some defect in the record or when some right has apparently been lost which the appellant is entitled to have enforced or when some wrong has been done which ought to be redressed. But here, as I see it, the decisive fact is that no remedial writ has been issued or applied for, and in consequence there is no basis for the “general supervision and control” for which the last clause provides. A close examination of our own decisions will, in my opinion, lend to this conclusion. The appeal presents a bare question of law, to the consideration of which our office as a revising and appellate court is restricted. McMillan v. Baker, 85 N. C., 292 . Unless one of the remedial writs is issued “this Court best serves its purpose and discharges its legitimate *575 function in our governmental system when it confines itself to its constitutional orbit ‘to review any decisions of the courts upon any matters of law or legal inference.’ ” Barker v. R. R., 137 N. C., 214 .
We cannot be too pronounced in the declaration that it is “better to rule than be ruled by the rout”; that the law of the mob shall not supplant the law of the land; and, as suggested in the dissenting opinion in Frank v. Mangum, supra, that “lynch law is as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death.” But in our solicitude to suppress the mob we must guard against undermining the foundation of principles which constitute the very structure of the law. I concur in the two propositions maintained by Connor, J., that the prisoner is entitled to a new trial for inadvertence in the charge, but not for the disorder which occurred during the trial.