The opinion
Brogden, J.,
concurring in result: The carefully prepared opinion of the Court, as I interpret the decisions, is correct with respect to the instruction complained of, but in my judgment there is a far graver and more serious aspect of the case which involves not only the constitutional rights of the defendant, but also the more important consideration of the integrity and sanctity of trial courts and their capacity to enforce and apply the law within their own tribunals. The paramount question presented by the record is what constitutes a fair trial as contemplated by law % This question is raised by a memorandum of the trial judge attached to the case on appeal. It is suggested that we have no right to consider this memorandum by virtue of the fact that no exception was taken at the trial to the outbreak in the courtroom. But the memorandum is here. The able and conscientious trial judge evidently thought it ought to be here, and therefore incorporated it as a part of the case on appeal. Assistant Attorney-General Nash, realizing the grave importance of the question involved, has made no motion to strike it from the record. Indeed, approximately one-half of his brief deals with the question. Both parties, therefore, have treated it as an exception. The defendant appealed from the judgment and this in itself is an exception thereto. If the judgment is not supported by a lawful trial, it is void as a matter of law and this Court was created for the express purpose of reviewing matters of law and legal inference. To say that a court of last resort cannot consider a matter of grave public moment, vitally affecting the administration of justice everywhere in the State, because no formal exception was put in the record by a mob-ridden prisoner, when the trial judge and all parties have treated it as such, is to exalt the shadow and debase the substance. This argument seeking to avoid the result of the 'intolerable tyranny of force takes refuge behind the *576 equally intolerable tyranny of form. Both are reiragnant to the genius of a free and justice-loving people. While of course a trial ought not to be weighed in golden scales, yet if the law of the land and the integrity of courts are too insignificant to register, then the law has no use for scales, golden or otherwise.
The memorandum referred to shows the following: “While Deputy Sheriff Kornegay was on the witness stand, and while the courtroom was crowded to its full capacity, the father of the deceased girl, And her uncle, William Tedder, approached the prisoner, and before anyone was aware of his intentions, seized the prisoner by the collar of his coat and attempted to drag him from the bar and into the main body of the courtroom, toward the front door. A number of persons in the audience shouted take him, take him !’ and a part of the crowd attempted to assist the two Tedders; but the greater part of the audience either remained standing or attempted to get out of the doors. Sheriff Grant rushed into the crowd, seized the prisoner, wrested him away from William Tedder and took him into the jury room, immediately to the rear of the witness stand. He left the prisoner in the jury room with a deputy, returned to the courtroom, and, as the audience was in somewhat of a turmoil, fired his pistol at the ceiling in order to quell the tumult. The court ordered the sheriff and his deputies to stand by and prevent any further demonstration, and stated to the audience that any further attempt upon the life of the prisoner would be met by force. The local military company had been directed by the Adjutant General to hold itself in readiness in case of an emergency, and it had been agreed that the company should assemble in the armory and be in full uniform by 9 :30 o’clock on Sunday morning when the court assembled to continue the trial. The signal for help was to ring the courthouse bell, which was done; and in a few minutes soldiers came into the courtroom, some six or seven of them, and formed a cordon about the prisoner during the remainder of the trial. There was no further demonstration and the trial proceeded in an orderly manner. During the foregoing demonstration the jury sat in perfect qj’der and did not appear to be at. all disturbed; and the court charged them, as appears from the case, not to be influenced by what had occurred. 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. The foregoing is settled as case on appeal in the case of State v. Larry Newsome, counsel having disagreed. This 2 January, 1928.”
In Robinson v. State, 65 S. E., 792 , the Georgia Court defined a fair trial as follows: “A fair trial means one in which there shall be no bias or prejudice for or against the accused, and in which not only the witness chair and the jury box, but the courthouse also shall be purged of *577 every suspicious circumstance tending to take from the accused any of the rights given to bim by the law.” Again in the famous Frank case, 237 U. S., 309 , 59 L. Ed., 983 , the Supreme Court of the United' States said: “We, of course, agree that if a trial is in fact dominated by a mob, so that the- jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court a departure from due process of law in the proper sense of that term.” To the same effect is Massey v. State, 20 S. W., p. 762. The Texas Court said: “In all civilized countries the law has always shown the most sacred regard for human life, and judicial tribunals, in the administration of the criminal law, have always deemed it proper to adhere with great strictness to established rules, where life and liberty are concerned. If courts could feel themselves at liberty to depart from principle or established rules in order to hasten the punishment of even great offenders, such departures might result in the destruction of those safeguards which, in accordance with the genius of all free governments, have been provided for the life and liberty of men.”
Upon tbe record and upon tbe principles of law applicable, tbe complete question before us is: “Can a prisoner, charged with a capital felony, and while testimony is being offered against bim in open court, be assaulted, man-bandied and dragged about tbe courtroom in tbe presence of tbe jury, and yet secure such a fair trial as under tbe Constitution and laws of tbe State will support a judgment condemning bim to death ?”
At the outset of the discussion it is perhaps advisable to consider the trend of judicial thought upon this question. In this State certain aspects of the question involved have been discussed in S. v. Wilcox, 131 N. C., 707 ; S. v. Harrison, 145 N. C., 408 ; S. v. Vann, 162 N. C., 534 ; S. v. Caldwell, 181 N. C., 519 . In the Caldwell case a mob in Wayne County attacked the courthouse and jail at night and after the adjournment of-court, presumably in an effort to lynch the prisoners. The attack was repelled. The jury was at a hotel two blocks away, and there is nothing in the case, as reported, to indicate that the jury knew of the attack. The next morning the trial proceeded regularly and in proper order.
Upon such a state of facts the verdict was upheld.
In S. v. Vann a ripple of laughter passed over the courtroom and there was some slight applause consisting of one or two handclaps by ladies, over a tilt between .the solicitor and counsel for the defendant. The court promptly repressed the disturbance and the judgment was upheld. In S. v. Harrison there was applause in the courtroom evoked by a tilt between counsel. The court imprisoned one offender for bis unseemly conduct, and this Court observed upon the appeal that “summary punish *578 ment upon an offender had far more influence upon the minds of the jury than the impulsive conduct of some of the audience.” In S. v. Wilcox, while counsel for the defendant was addressing the jury, about one hundred people, as if by concert, left the courtroom. Soon thereafter a fire alarm was given near the courthouse, which caused a number of other persons to leave the courtroom. As in 'the case at bar, there was no motion made by the prisoner to set aside the verdict in consequence of such conduct, and the court did not find that the jury was influenced thereby. This Court observed: “In such a case as this, it was not indispensable that a finding by his Honor that the jury had been influenced by the conduct of the offenders should have been made.” In discussing the merits of the case the Court said: “The disorderly proceedings assumed such proportions as to warrant this Court in declaring that the trial was not conducted according to the law of the land. The propriety of our ruling is strengthened by the circumstances that contempt proceedings were not commenced against those offending, and that no motion was made to set the verdict aside and for a new trial after such unheard of demonstration. . . . The prisoner must not only be tried according to the forms of law, these forms being included in the expression ‘the law of the land/ but his trial must be unattended by such influences and such demonstrations of lawlessness and intimidation as were present on the former occasion. The courts must stand for civilization, for the proper administration of the law in orderly proceedings. There must be a.new trial of this case.” Clark, J., concurring in the opinion of the Court said: “The administration of justice must not only be fair and unbiased, but it must be above any just suspicion of any influence, save that credit which the jury shall give to the evidence before them. It is of vital importance to the public welfare that the decisions of courts of justice shall command respect, but this will be impossible if there is ground to believe that extraneous influence of any kind whatever has been brought to bear.”
The wholesome and salutary principles announced in the Wilcox case have been recognized with practical uniformity by Appellate Courts of other jurisdictions. In Sanders v. The State, 85 Ind., 318 , the defendant was charged with killing his wife. The killing had aroused intense feeling, and when the case came to trial threats of lynching were made by a mob. Counsel for the prisoner prepared an affidavit for continuance, but feared to present it lest the mob would seize and hang his client. The prisoner first entered a plea of not guilty, but by reason of the presence of the mob, the plea was withdrawn and a plea of guilty entered. A verdict of guilty was returned by the jury. The defendant was sentenced to life imprisonment and was immediately hurried to the penitentiary. Thereafter the defendant asked that the plea of guilty be *579 vacated and that be be awarded a trial according to law. The Court vacated the judgment and permitted the defendant to withdraw the plea of guilty. The Court said: “All men are by our laws entitled to a fair trial, in absolute freedom from restraint and entire liberty from fear of threats and violence.” In Collier v. State, 42 S. E., 226 , the defendant was tried and convicted for rape. While the prosecutrix was upon the witness stand she grew excited and turned to the defendant, saying, “You know you are guilty.” Thereupon a large portion of the audience became very much excited and came pouring over the benches in an excited manner to where the defendant was. Tbe judge commanded the crowd to sit down. After the jury bad retired to the jury room to consider their verdict there was a crowd of fifty or seventy-five people in and around the courthouse and in the yard of the courthouse who were acting in a very boisterous manner. Tbe Supreme Court of Georgia said: “It would be mere idle talk to say that the jurors did not understand that the demonstration was against the prisoner on trial. It is true that each of the jurors testified that, while they beard the noises, they could not understand what was said. . . . But the question is not whether, in fact, the jurors were influenced by these demonstrations, but were the demonstrations calculated to influence the jurors in their action. . . . Tested by this rule, it is apparent that the defendant did not have a fair and impartial trial, which the law guarantees to him, and to which be is entitled be be guilty or innocent. Tbe beinousness of the crime with which be was charged must not and cannot be allowed to affect the manner of bis trial; and only by a fair and legal trial can bis guilt be so established as to make him subject to the punishment which the law visits on offenders in such a case.” So in Woolfolk v. State, 8 S. E., 724 , during the progress of the trial, someone in the audience cried out, “Hang him! Hang him!” All the jurors made affidavits that these things had no influence upon their minds. Tbe Supreme Court of Georgia said: “Can any of us know bow far our minds are influenced by applause or excitement of a crowd which surrounds us? Can any of us say, even in this Court, that this or that piece of testimony, or this or that argument of counsel, has not influenced our minds ? Can any of us say that, on the trial of one of the most heinous crimes ever committed in this State or any other, the applause of the crowd, the fierce cries of 'Hang him! Hang him!’ from members of the crowd, followed later on by a repetition of the same cry, would have no influence upon our minds? Our minds are so constituted that it is impossible to say what impression scenes of this bind would make upon us, unless we bad determined beforehand that the prisoner was guilty or innocent.” Again in S. v. Weldon, 91 S. C., 29, 74 S. E., 43 , the second head-note is as follows: “Where a large crowd of people intensely hostile to the accused crowded *580 the courthouse during their trial for murder, and filled the space within the bar immediately around the judge, the jury, and the witnesses, so that counsel for accused did not see the jury, until he addressed them, because of the crowd, and the crowd’s intrusion into that part of the courtroom .was calculated to overawe the jury, and it was not so safeguarded against extraneous influences as to allow the defendants the right of trial by an impartial jury.. . : . The defendants, upon conviction, were entitled to a new trial.” In that case the trial judge, in making report of the trial to the Appellate Court stated: “It was simply a crowd and quite a crowd for Florence courtroom, and that is all that can be said about it, .except that it was the best behaved crowd I ever saw.” The Supreme Court of South Carolina, however, notwithstanding, said: “We are unable to assent to the opinion of the presiding judge that such a state of affairs did not interfere with the orderly conduct of the business of the Court or with the rights of the accused. . . . By our Constitution, the people have set the law above themselves, except as they choose to change it by the methods which they themselves have ordained; and they have laid upon the courts the duty of enforcing their promise that the weak, as well as the strong, shall be condemned only after a fair trial according to law before an impartial jury. In the faithful performance of their promise by the people, and in the discharge of their duty by the courts, is involved, not only the public honor, but public safety, prosperity, and happinéss; for in the long run neither individual nor community success is possible, unless men feel that they will not lose life nor liberty nor property without a fair and impartial trial under the law of the land.”
In Fountain v. State, 107 Atlantic, 554, 5 A. L. R., 908, it appeared that when court adjourned at ten o’clock at night on the first day of the trial a large crowd of about two thousand persons were assembled on the courthouse ground upon which the county jail was located; that while the prisoner was being taken from the courthouse to the jail through the crowd personal violence was inflicted upon him in an effort to take him from the custody of officers and lynch him. In the confusion the defendant made his escape. The trial was suspended and a reward of $5,000 for his recapture was offered by the court. Within two days he was recaptured and the trial proceeded, and the defendant was convicted of rape. The Supreme Court of Maryland said: “It is natural that popular wrath and indignation should be aroused by such an atrocious offense as this record discloses. But the identification and punishment of the criminal must be left to the careful and regular processes of the law, however deep and just may be the public sense of horror at the crime. The law does not tolerate any interference with the right of the humblest individual to be accorded equal and exact justice, *581 and, when charged with crime, to have the question of bis guilt or innocence fairly and impartially determined. It is of the highest concern to the people and courts alike that this vital and sacred right shall be preserved inviolate. Judgment reversed, and new trial awarded.” The Court of Criminal Appeals of Texas, considering the question in Massey v. State, 20 S. W., 758 , said: “Appellant has not had a fair and impartial trial. He has not had a legal trial. But it may be urged that he is guilty, beyond all question, and therefore the judgment should be affirmed. Not so. The accused must be tried and convicted legally, and though he be a negro, he must be tried in precisely the same manner as if he were a white man. In the case of Shylock v. Antonio, the merchant of Venice, Bassanio, a great friend of Antonio, urged Portia, the judge; to “wrest once the law to your authority. To do a great right, do a little wrong, and curb this cruel devil of his will.” Portia’s answer was law — the correct principle. She replied: “It must not be. There is no power in Venice can alter a decree established. ’Twill be recorded for a precedent, and many an error, by the same example, will rush into the State. It cannot be.”
In Faulkner v. State, 189 S. W., 1077 , the defendant was indicted and convicted of rape. When the prosecutrix was testifying she pointed out the defendant. Immediately a brother of the prosecutrix who was sitting near the bar, arose with the exclamation “Lynch the son of a bitch, he is mine,” and came walking toward the defendant. A deputy sheriff took him before he got to the defendant. The sheriff partly drew his pistol, commanding the brother of the prosecutrix to stop, and he was taken from the courtroom. The presiding judge said nothing and the offending party was neither fined nor otherwise reprimanded for his conduct. While the jury was deliberating there was a large crowd in the courtroom. The judge ascertained that the verdict of the jury would be life imprisonment and was afraid to bring the jury out of the jury room until the crowd dispersed, which was sometime after midnight. The court of criminal appeals of Texas awarded'a new trial, the court observing : “It will be an unfortunate day in Texas and its jurisprudence and to the life-loving citizenship, if mob spirit can pervade the courtroom and influence the jury in their verdict against the testimony, or even where there might be testimony sufficient to support the conviction, that would influence or tend to influence the jury against defendant on such trial.”
The cases referred to are typical of a great multitude of decisions upon various aspects of the subject. The writer has found no case in which a prisoner has actually been assaulted by a mob in the presence of the jury and during the progress of taking testimony. The case at bar therefore is without a parallel or a peer in the judicial history of the question *582 involved so far as I have discovered. Indeed this Court has held that unnecessary abuse of a defendant in the argument of his case may warrant a new trial. The famous “upas tree case” is a shining example. The incident occurred in the case of Coble v. Coble, 79 N. C., 589 , in. which the attorney for the plaintiff compared the defendant to “the upas tree, shedding pestilence and corruption all around him.” The contention was that this language could not have influenced the jury. This Court said: “This is the excuse. To use it seems an aggravation of the offense, for it admits that there was not and could not have been a single ground for the derogatory assault upon the defendant. It was therefore unprovoked and wanton, and could have been resorted to for the single purpose only of prejudicing his cause before the jury — the verdict must be carried by denouncing the man — and it was carried.” Again in S. v. Tucker, 190 N. C., 708 , the prisoners were referred to as follows: “Gentlemen of the jury, look at the defendants, they look like professional bootleggers, their looks are enough to convict them.” The Court awarded a new trial, although the defendants were charged not with a capital felony, but for a violation of the prohibition law. Certainly, if a new trial is awarded under the law for an assault with words in the trial of a misdemeanor, it would appear that the actual assaulting and manhandling of a prisoner in the presence of a jury during the progress of his trial for a capital felony would be of equal dignity with a violation of the liquor law or of a civil action when perhaps an insignificant amount of property was involved.
I am not inadvertent to the fact that such a crime as is' disclosed by the present record excites in a normal man a feeling of outrage as strong as death and as cruel as the grave; but society from motives of sheer preservation has built the rock of law to stand as an unshaken and everlasting barrier to roll back, in vain, the lashing waves of popular clamor and revenge. Under the law as written the life of the defendant can be taken by the State, if found guilty after a fair and impartial trial, but 'when the State takes life it ought to take it as befits the peace and dignity of a great State, and this can only be done when the constitutional safeguards set by our fathers have been observed and applied in the trial of the accused. These safeguards are not designed solely for the benefit of a criminal, but for the preservation and integrity of society itself. Much is being said and written about law enforcement. But if the law cannot be enforced within the very tribunals of justice, so as to preserve inviolate the person of litigants from frenzied force, and yet uphold verdicts rendered after such unlawful invasion of the sanctity of judicial proceedings, well may the court criers throughout the State in opening and adjourning the sittings, shout in thunder tones, “God save the State and this Honorable Court.”
*583 I think, when the defendant was seized, assaulted, man-handled and dragged about the courtroom, in the presence of the jury and during the introduction of testimony against him, that then and there the trial ended and the subsequent proceedings were a nullity.