I. GENERAL CONSIDERATION.

Editor's Note. - Many of the annotations under this section are from cases decided prior to the 1981 amendments.

The plan in this section for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

Constitutionality of Former Chapter. - See State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

Power of State to Prescribe Qualifications of Jurors. - Absent discrimination by race or other identifiable group or class, a State is at liberty to prescribe such qualifications for jurors as it deems proper without offending U.S. Const., Amend. XIV. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

The legislative intent of this section is to provide a system for objective selection of veniremen. State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).

The procedure set forth in this Article is objective and systematic. State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980).

Technical and insubstantial violations of the statutes regulating jury selection in this Chapter are not sufficient to vitiate a jury list or afford a challenge to the array. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Deviations from the statutory norm do not automatically constitute reversible error absent an express statutory provision to the contrary. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

In order to justify a motion to quash an indictment upon grounds that statutory procedures were violated in the compilation of the jury list, a party must show corrupt intent, systematic discrimination in the compilation of the list, or irregularities which affect the actions of the jurors actually drawn and summoned. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

Provisions of Former G.S. 9-1 as to Jury List Directory and Not Mandatory. - See State v. Smarr, 121 N.C. 669, 28 S.E. 549 (1897); State v. Perry, 122 N.C. 1018, 29 S.E. 384 (1898); State v. Bonner, 149 N.C. 519, 63 S.E. 84 (1908); State v. Brown, 233 N.C. 202, 63 S.E.2d 99, cert. denied, 341 U.S. 943, 71 S. Ct. 997, 95 L. Ed. 1369 (1951); State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Special Statute Allowing Other Method. - Where a statute creating a special criminal court for certain counties allows every facility to the accused for getting a fair and impartial jury, it is not unconstitutional because it does not follow the same methods of drawing the jury which are provided for by the superior courts. State v. Jones, 97 N.C. 469, 1 S.E. 680 (1887).

The trial judge in a murder trial did not err in denying defendant's motion for funds to employ a statistician to review the jury venire in the county over a substantial period of time to determine whether the jury commission failed to perform its statutory duty when compiling the jury venire from which defendant's jury would be selected where defendant presented no evidence that the new jury selection process in the county was discriminatory, or that the services of a statistician would have resulted in the selection of a more favorable jury. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Applied in State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63 (1973); State v. Hubbard, 19 N.C. App. 431, 199 S.E.2d 146 (1973); State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. Corpening, 129 N.C. App. 60, 497 S.E.2d 303 (1998); State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001).

Cited in Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92 (1970); State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978); State v. Mayes, 323 N.C. 159, 371 S.E.2d 476 (1988); Armstrong v. North Carolina State Bd. of Dental Exmrs., 129 N.C. App. 153, 499 S.E.2d 462 (1998), cert. denied, 525 U.S. 1103, 119 S. Ct. 869, 142 L. Ed. 2d 770 (1999).

II. SOURCES OF LIST.

A jury commission is not limited to the sources specifically designated by this section. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Selection of Names only from Certain Letters of Alphabet. - Names for the list of grand and petit jurors were not chosen arbitrarily or nonsystematically in violation of this section where every fourth name from the tax list was taken only from the letters A, B, C, D and M rather than from the entire alphabet. However, the practice of choosing names only from certain letters of the alphabet is not approved, since this section seems to contemplate systematic selection of names from the entire alphabet. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980).

Jury List Not Discriminatory Because Made from Tax List. - A jury list is not discriminatory merely because it is made from the tax list. The tax list is perhaps the most comprehensive list available for the names of male citizens. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Even if the tax lists contained a disproportionate male-female ratio, such disproportion did not result from a systematic, arbitrary and intentionally discriminatory process on the part of the jury commission. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

But commissioners are not limited to use of tax list, and the use of other lists might result in the selection of more women jurors. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

Failure to Use List of Names Not Appearing on Tax Lists. - The fact that the county commissioners did not also use a list of names of persons who do not appear on the tax lists does not show racial discrimination in the selection of prospective jurors. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

Use of a jury box containing only the names of property owners is not per se discriminatory as to race and does not unfairly narrow the choice of jurors so as to impinge defendant's statutory or constitutional rights. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970).

Mere irregularity on the part of the jury commissioners in preparing the jury list, unless obviously, designedly or intentionally discriminatory, will not vitiate the list or afford a basis for a challenge to the array. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

Jury Commission Need Not Ascertain Validity of Procedures Used in Compiling Lists. - To hold that a jury commission must ascertain the validity of the procedures used by independent bodies in compiling tax and voter registration lists before using such lists as sources of names of prospective jurors would be to impose an impossible burden. State v. Tant, 16 N.C. App. 113, 191 S.E.2d 387, cert. denied, 282 N.C. 429, 192 S.E.2d 839 (1972); 414 U.S. 938, 94 S. Ct. 240, 38 L. Ed. 2d 165 (1973).

Removal of Certain Names from Lists. - Where commissioners laid aside names of several persons, otherwise qualified, because they did not know whether they were residents of the county, and the jury list was completed by the names of other duly qualified persons, if there was any irregularity it did not affect the action of the jurors so drawn and summoned. State v. Wilcox, 104 N.C. 847, 10 S.E. 453 (1889) (decided under former G.S. 9-1).

Merely purging the jury list of the names of those who had not paid their taxes, without adding any new names thereto, does not vitiate the venire in the absence of bad faith or corruption on the part of the county commissioners. State v. Dixon, 131 N.C. 808, 42 S.E. 944 (1902) (decided under former G.S. 9-1).

Rejection of prospective jurors for want of good moral character and sufficient intelligence was available to the county commissioners as a general objection only when the jury list was being prepared, and not after the names were in the box. State v. Speller, 229 N.C. 67, 47 S.E.2d 537 (1948); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964) (decided under former G.S. 9-1).

Compilation of List in 1981. - Commission was not required to use as a source of names the list of licensed drivers residing in the county, where in accord with subsection (a) of this section, the jury list for the county for the biennium beginning January 1, 1982, was compiled November 23 and 24, 1981, as at that time subsection (c) of this section was not in effect, even though the trial began in October 1983. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).

III. PROOF OF DISCRIMINATION.

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Discrimination on Account of Race. - See State v. Daniels, 134 N.C. 641, 46 S.E. 743 (1904); State v. Brown, 233 N.C. 202, 63 S.E.2d 99, cert. denied, 341 U.S. 943, 71 S. Ct. 997, 95 L. Ed. 1369 (1951); Miller v. State, 237 N.C. 29, 74 S.E.2d 513, cert. denied, 345 U.S. 930, 73 S. Ct. 792, 97 L. Ed. 1360 (1953); Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

How Prima Facie Case of Purposeful Discrimination Established. - The petitioner has the initial burden of establishing a prima facie case of purposeful discrimination. A prima facie case of jury discrimination can be established through a showing of a substantial disparity between the percentage of black residents in the county as a whole and on the jury lists, or by a showing of such disparity between the percentages of black residents on the tax rolls, from which the jury lists are drawn, and on the jury lists. Such a showing is strengthened where the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

The disparity between the percentage of black residents over 21 years of age in a county (45.5%) and on the jury list (4.5%) constituted a prima facie case of systematic exclusion of black residents from the county grand and petit jury lists. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

To establish a prima facie case of systematic racial exclusion, defendants are generally required to produce not only statistical evidence establishing that black residents were underrepresented on the jury, but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few black residents have served on the juries of the county notwithstanding a substantial black population therein, or both. State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

In order to establish a prima facie case that there has been a violation of the requirement that a jury be composed of persons who represent a fair cross section of the community, defendant must document that the group alleged to have been excluded is a distinctive group; that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community; and that this underrepresentation is due to systematic exclusion of the group in the jury selection process. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Distinctiveness of Excluded Group. - In determining whether a group is distinctive or cognizable for the purpose of a challenge to a jury selection plan, three factors which must be considered are whether there is some quality or attribute in existence which defines or limits the membership of the alleged group, whether there is a cohesiveness of attitudes, ideas, or experiences which serves to distinguish the purported group from the general social mileau, and whether a community of interest must be present within the alleged group which may not be represented by other segments of the populace. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

The North Carolina Supreme Court does not recognize "young people" between the ages of 18 and 29 as a distinct group for the purpose of determining whether a jury panel represents a fair cross section of the community. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Effect of State's Failure to Justify Disparity. - If a prima facie case of jury discrimination is proven, the State must justify the disparity. However, the State's failure to do so does not mean that a guilty defendant must go free. The State may indict and try him again by the procedure which conforms to constitutional requirements. Parker v. Ross, 330 F. Supp. 13 (E.D.N.C. 1971), rev'd on other grounds, 470 F.2d 1092 (4th Cir. 1972).

Sample of 40 Jurors Insufficient. - A small sample of 40 jurors from the master list of jurors of a county alone was insufficient to establish a systematic exclusion of blacks from the jury pool. State v. McNeill, 326 N.C. 712, 392 S.E.2d 78 (1990).

Discrimination Not Established. - There was no systematic exclusion of blacks, women and 18- through 21-year-olds where jury commissions used a neutral systematic selection procedure (e.g., every 6th name) in selecting names from the source lists as required by this section, and it appeared that the only criteria used in striking names from the jury lists were the permissible disqualifications set out in G.S. 9-3. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).

Although the defendant's proof showed that during the period in question blacks made up 17.1 percent of the jury pool but 31.1 percent of the county's population, and young people between the ages of 18 and 29 made up 22.5 percent of the jury pool but 33.3 percent of the county's population, the defendant failed to show that such misrepresentation was the result of a systematic exclusion of those groups by the jury selection process, since the jury commission had fairly and reasonably selected every second name from the county tax listing and every third name from the county voter registration list. State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Where the evidence showed that jury lists were compiled in strict compliance with this section, the mere fact that only 15 percent of the jury pool was black in a county in which the population was 24 percent black was insufficient to show systematic discrimination. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, rehearing denied, 463 U.S. 1249, 104 S. Ct. 37, 77 L. Ed. 2d 1456 (1983).

Where defendant failed to present evidence showing a gross discrepancy between the percentage of non-whites in a jury venire randomly selected by computer from the county voter registration list prescribed by this section as a master list, defendant's challenges under U.S. Const., Amends. VI and XIV to the grand jury and petit jury venire would be rejected. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), aff'd, 315 N.C. 1, 383 S.E.2d 591 (1989).

Where although the jury commissioners failed to strictly comply with this section and G.S. 9-2.1 [now repealed] and 9-5, all of the evidence tended to negate any corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned, and the trial judge found, on competent evidence, that the jurors were randomly selected, both from the voter list and the driver's license list, and that the selection of the master jury list was in substantial compliance with the law, there was no justification for a dismissal of the indictment or challenge to the array on grounds that statutory procedures were violated in the compilation of the jury list. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Requiring Defense Counsel to Investigate Jury Selection Procedures. - It places no undue burden on defense counsel to require them to make investigations into jury composition and selection procedures with regard to possible systematic racial exclusion prior to the time of trial, so long as the time between retention or appointment of counsel, the date the jury panel is drawn, and the date of trial is not so brief as to make such investigation impractical. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

Reasonable Time Allowed Defendant to Investigate Improper Procedures. - A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged systematic exclusion of black persons because of their race from serving on the grand or petit jury in his case. Whether he was afforded a reasonable time and opportunity must be determined from the facts in each particular case. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

IV. DECIDED UNDER FORMER G.S. 9-2.1

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To establish a prima facie case of violation of the requirement that a jury be composed of persons who represent a fair cross-section of the community, the defendant must document (1) that the group alleged to have been excluded is a distinctive group, (2) that the representation of the group in question within the venire is not fair and reasonable with respect to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676 (1986).

Noncompliance with Statutory Requirement Not Necessarily Discrimination. - Where defendant did no more than allege that the requirement in this section that the procedure for composing the jury list be available for public inspection in the clerk's office was violated, defendant did not make a prima facie case of discrimination. The mere failure to follow the statutory requirement, without a showing or allegation of how such failure affected defendant, is not a sufficient basis to quash the jury list. State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676 (1986).

Discrimination Not Established. - Where although the jury commissioners failed to strictly comply with this section and G.S. 9-2 and 9-5, all of the evidence tended to negate any corrupt intent, discrimination, or irregularities which affected the actions of the jurors actually drawn and summoned, and the trial judge found, on competent evidence, that the jurors were randomly selected, both from the voter list and the driver's license list, and that the selection of the master jury list was in substantial compliance with the law, there was no justification for a dismissal of the indictment or challenge to the array on this basis that statutory procedures were violated in the compilation of the jury list. State v. Massey, 316 N.C. 558, 342 S.E.2d 811 (1986).

Surgeon in a malpractice action was not prejudiced by the use of the alternative method for selecting a jury pool authorized by G.S. 9-2.1 merely because civilian employees of the county sheriff's office entered a password that commanded data processing equipment to randomly produce a list of prospective jurors. Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222 (2001).

Opinions of Attorney General

Use of Less Than All Names on Tax and Voter Registration Lists. - See opinion of Attorney General to Mr. Fred P. Parker, Wayne County Attorney, 40 N.C.A.G. 129 (1969).

Commission's Control of List Ceases Upon Preparation of List. - See opinion of Attorney General to Honorable Louise S. Allen, 42 N.C.A.G. 260 (1973).

I. GENERAL CONSIDERATION.

Administering Oath to Prospective Jurors. - The phrase "at the beginning of court," as it applies to the swearing of prospective jurors, refers to the beginning of the term of court, as opposed to the beginning of an individual trial, which may be civil or criminal. State v. McNeill, 349 N.C. 634, 509 S.E.2d 415 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307, 68 U.S.L.W. 3225 (1999).

The presiding judge has the duty to supervise the examination of prospective jurors. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988); State v. Green, 336 N.C. 142, 443 S.E.2d 14, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994).

Regulation of the manner and extent of inquiries on voir dire rests largely in the trial judge's discretion. State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988); State v. Green, 336 N.C. 142, 443 S.E.2d 14, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994).

Administration of Oath During Voir Dire. - The State's failure to administer an oath requiring prospective jurors to "tell the truth" during voir dire did not taint jury selection or violate defendant's right to a fair and impartial trial, where the jurors took the statutorily prescribed oath prior to trial and there was no evidence to show that the jury was unqualified to sit, or that he had been prejudiced in any way. State v. McNeill, 349 N.C. 634, 509 S.E.2d 415 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307, 68 U.S.L.W. 3225 (1999).

The trial court was not required to ask prospective jurors to swear to tell the truth during jury voir dire State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775 (2001).

Juror Must Qualify to Be Sworn in at the Beginning of Court. - Court committed no error in excusing a juror, where the transcript revealed that at the time jury selection commenced, the juror had previously served on a federal jury within two years and was not immediately qualified to serve in the instant case; the court could not, as defendant suggested, move the juror to a later panel and then swear her in at the time she was called. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018), cert. dismissed, as moot, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (N.C. 2020).

A defendant is not entitled to a jury of his selection or choice, but only to a jury selected pursuant to law and without unconstitutional discrimination against a class or substantial group of the community from which the jury panel is drawn. He has no vested right to a particular juror. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Applied in State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Wetmore, 287 N.C. 344, 215 S.E.2d 51 (1975); In re Wellnitz, 350 N.C. 109, 512 S.E.2d 720 (1999), cert. denied, 528 U.S. 941, 120 S. Ct. 351, 145 L. Ed. 2d 274 (1999).

Cited in State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971); State v. Moye, 12 N.C. App. 178, 182 S.E.2d 814 (1971); State v. Zigler, 42 N.C. App. 148, 256 S.E.2d 479 (1979); State v. Wright, 52 N.C. App. 166, 278 S.E.2d 579 (1981); State v. Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S. 824, 118 S. Ct. 84, 139 L. Ed. 2d 41 (1997).

II. CHALLENGE TO JURORS.

The right of challenge is not one to accept, but to reject. It is not given for the purpose of enabling the defendant, or the State, to pick a jury, but to secure an impartial one. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

It has been held in many cases that the right to challenge a juror for cause is given to afford a litigant fair opportunity to remove objectionable jurors, and was not intended to enable him to select a jury of his own choosing. See Blevins v. Erwin Cotton Mills Co., 150 N.C. 493, 64 S.E. 428 (1909).

A party has no right to seat a particular juror, but only to reject one who is prejudiced against him. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981).

Opinion of Juror. - The expression of an opinion is sometimes ground for challenge, but is not if the juror states that the opinion could be eliminated and a fair and impartial verdict rendered. State v. Bailey, 179 N.C. 724, 102 S.E. 406 (1920); State v. Winder, 183 N.C. 776, 111 S.E. 530 (1922).

The challenge for this cause can be made only by that party against whom the opinion was formed and expressed. State v. Benton, 19 N.C. 196 (1836).

A juror may be examined as to opinions honestly formed, and honestly expressed, manifesting a bias of judgment, not referable to personal partiality, or malevolence; but if the opinion has been made up and expressed under circumstances which involve dishonor and guilt, and where such expression may be visited with punishment, he ought not to be required to testify so as to incriminate himself. State v. Benton, 19 N.C. 196 (1836); State v. Mills, 91 N.C. 581 (1884).

In an indictment for illegal sale of liquor, challenges for cause, in that the jurors belonged to the Anti-Saloon League, were properly disallowed, where the jurors had taken no part in prosecuting or aiding in the prosecution of the defendant. State v. Sultan, 142 N.C. 569, 54 S.E. 841 (1906).

The desire of a prospective juror to affirm rather than take an oath is not, of itself, cause for challenge in this State. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

Relationship Between Juror and Party. - A juror, who was related to the defendant by blood or marriage within the ninth degree of kinship, was properly rejected when challenged by the State for cause on that ground. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Relationship Between Juror and Witness. - A relationship within the ninth degree between a juror and a State's witness, standing alone, is not legal ground for challenge for cause. Where such relationship exists and is known and recognized by the juror, a defendant's challenge for cause should be rejected only if it should appear clearly that, under the circumstances of the particular case, the challenged juror would have no reason or disposition to favor his kinsman by giving added weight to his testimony or otherwise. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Relationship of Juror to District Attorney. - The trial court did not err in the denial of defendant's challenge for cause directed to the district solicitor's (now district attorney's) father-in-law being a juror, where the challenge was denied only after the juror stated, upon being questioned by the court, that he would not convict on his relationship to the solicitor (now district attorney), and after it was ascertained that the district solicitor (now district attorney) was not prosecuting defendant's case. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

As to exclusion of juror for nonresidence, see State v. Bullock, 63 N.C. 570 (1869); State v. Upton, 170 N.C. 769, 87 S.E. 328 (1915).

As to exclusion for employment by party, see Oliphant v. Atlantic C.L.R.R., 171 N.C. 303, 88 S.E. 425 (1916).

Excluding Jurors for Opposition to Capital Punishment. - Under the decision of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. State v. Ruth, 276 N.C. 36, 170 S.E.2d 897 (1969).

Judgment of the superior court sentencing defendant to death for first-degree murder had to be vacated under the decision of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), where the trial court allowed the State's challenges for cause to seven prospective jurors who stated simply a general objection to or conscientious scruples against capital punishment, notwithstanding the trial occurred prior to the Witherspoon decision, since that decision was fully retroactive. State v. Ruth, 276 N.C. 36, 170 S.E.2d 897 (1969).

A trial judge should allow challenge for cause when a venireman is not willing to consider all possible penalties provided by State law and when the venireman is unalterably committed to vote against the death penalty, regardless of the evidence which might be presented at trial. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

In a capital case, if a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212 (1976).

In a capital case a juror may be properly challenged for cause if he indicates he could not return a verdict of guilty knowing the penalty would be death, even though the State proved to him by the evidence and beyond a reasonable doubt that the accused was guilty of the capital crime charged. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976).

In a first-degree murder trial, where prospective juror stated that knowing that the death penalty would be imposed he did not feel that he could vote for a verdict of guilty even though he was satisfied of defendant's guilt, the trial judge, in his discretion, and at the request of the prospective juror, in excusing the prospective juror did not commit prejudicial error. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Time of Challenge. - The court may, in its discretion, permit a juror to be challenged by the State for cause, after he has been tendered to the defendant and before the jury is impaneled. State v. Green, 95 N.C. 611 (1886).

Excusing Unchallenged Juror. - The trial judge could excuse a juror, before the jury was impaneled, although the solicitor (now district attorney) had passed him to the defendant and had not challenged him for cause. State v. Vick, 132 N.C. 995, 43 S.E. 626 (1903).

It is the right and duty of the court to see that a competent, fair and impartial jury is impaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party. It is immaterial that this is done as the result of information voluntarily disclosed by the prospective juror without questioning. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

It is the duty of the trial judge to see that a competent, fair and impartial jury is impaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Method of Taking Advantage of Error. - The action of a trial judge in determining the qualifications of a juryman, if erroneous, was ground for a challenge to the array by a motion to quash and set aside the entire panel, and in the absence of such challenge a defendant could not be allowed to take advantage of the alleged error after trial and judgment. State v. Moore, 120 N.C. 570, 26 S.E. 697 (1897).

The erroneous allowance of an improper challenge for cause did not entitle the adverse party to a new trial, so long as only those who were competent and qualified to serve were actually impaneled upon the jury which tried his case. This was especially true where the adverse party did not exhaust his peremptory challenges. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973).

III. COMPETENCY OF JURORS.

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The question of whether a juror is competent is one for the trial judge to determine in his discretion, and his rulings thereon are not reviewable on appeal unless accompanied by some imputed error of law. State v. Blount, 4 N.C. App. 561, 167 S.E.2d 444 (1969); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972); State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972); State v. Cameron, 17 N.C. App. 229, 193 S.E.2d 485 (1972), aff'd, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976).

The trial court has broad discretion in the voir dire selection of jurors, and the exercise of the party's right to examine prospective jurors should be carefully supervised by the trial court. State v. Wood, 20 N.C. App. 267, 201 S.E.2d 231 (1973).

The competency of jurors to serve is left largely to the sound legal discretion of the trial judge, and his rulings thereon are not subject to review on appeal unless accompanied by some imputed error of law. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Ruling on motion for competency of jurors is discretionary with the trial judge and will not be reviewed absent a showing of abuse of discretion or an error of law. State v. Moore, 24 N.C. App. 582, 211 S.E.2d 470 (1975).

Decisions as to a juror's competency at the time of selection and his continued competency to serve are matters resting in the trial judge's sound discretion and are not subject to review unless accompanied by some imputed error of law. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Unquestionably the trial judge is vested with broad discretionary powers in determining the competency of jurors and that discretion will not ordinarily be disturbed on appeal. State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977).

The trial judge is vested with broad discretion in determining the competency of the jurors. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981).

The trial judge is empowered to decide all questions regarding the competency of jurors. His decision as to a juror's competency is a matter vested in his sound discretion and will be reversed only upon a demonstration that he abused this discretion. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).

Review of Discretion. - The rulings of the judge on questions as to the competency of jurors are not subject to review on appeal unless accompanied by some imputed error of law. State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523 (1944); State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947); State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924 (1949); State v. Gibbs, 5 N.C. App. 457, 168 S.E.2d 507 (1969); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976); State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976).

Where a juror in a homicide trial had sister of deceased as one of his passengers in a four-mile automobile trip, the defendant moved to set aside the verdict. The juror stated upon oath that he did not know that his passenger was the sister of the deceased, and the court found upon investigation that the case was not discussed during the ride. It was held that exception to refusal of motion was not reviewable. State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924 (1949).

The trial court's findings, upon supporting evidence, that persons of defendant's race were not excluded from the petit jury on account of race, were conclusive on appeal, and defendant's exception to the overruling of his challenge to the array on that ground presented no reviewable question of law. State v. Reid, 230 N.C. 561, 53 S.E.2d 849, cert. denied, 338 U.S. 876, 70 S. Ct. 138, 94 L. Ed. 537 (1949).

Defendant moved for a new trial on the ground that during the trial he discussed the case with one of the jurors before recognizing him as a juror. The court found that the defendant had not shown that he was in anywise prejudiced by the occurrence, and denied defendant's motion for a new trial. The ruling of the court was not reviewable. State v. Scott, 242 N.C. 595, 89 S.E.2d 153 (1955).

A ruling in respect to the impartiality of a juror presents no question of law for review. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

Defendant seeking to establish on appeal that the exercise of judicial discretion constituted reversible error must show harmful prejudice as well as clear abuse of discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

I. IN GENERAL.

A motion to examine jurors individually, rather than collectively, is directed to the sound discretion which the trial court possesses for regulating the jury selection process. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Defendant seeking to establish on appeal that the exercise of judicial discretion constituted reversible error must show harmful prejudice as well as clear abuse of discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

The questioning of jurors in defendant's absence erroneously deprived defendant of his right to be present at his trial, but the error was harmless where the court was satisfied here beyond a reasonable doubt that defendant's absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991).

Applied in State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992).

Cited in State v. Crummy, 107 N.C. App. 305, 420 S.E.2d 448, cert. denied, 332 N.C. 669, 424 S.E.2d 411 (1992).

II. QUESTIONING PROSPECTIVE JURORS.

A. NATURE AND SCOPE OF INQUIRY.

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Purpose of Voir Dire. - The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: first, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976); In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978); State v. Brown, 39 N.C. App. 548, 251 S.E.2d 706, cert. denied, 297 N.C. 302, 254 S.E.2d 923 (1979); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981).

The purpose of the voir dire examination and the exercise of challenges, either peremptory or for cause, is to eliminate extremes of partiality and to assure both the defendant and the State that the persons chosen to decide the guilt or innocence of the accused will reach that decision solely upon the evidence produced at trial. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976).

The primary purpose of the voir dire of prospective jurors is to select an impartial jury. State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977); In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

The voir dire examination of jurors allowed by this section serves the dual purpose of ascertaining whether grounds exist for challenge for cause to enable counsel to exercise intelligently the peremptory challenges allowed by law. State v. Brown, 53 N.C. App. 82, 280 S.E.2d 31, cert. denied, 304 N.C. 197, 285 S.E.2d 102 (1981).

Any party to an action, whether civil or criminal, is entitled to inquire into the fitness and competency of any prospective juror. State v. Wood, 20 N.C. App. 267, 201 S.E.2d 231 (1973).

The right of inquiry concerning a prospective juror's competency and fitness to serve may be exercised by or on behalf of the defendant as well as the State. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).

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. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Prospective jurors may be asked questions which will elicit information not per se a ground for challenge in order that the party, propounding the question, may exercise intelligently his or its peremptory challenges. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1206 (1976).

Questions Regarding Right to Make a Will. - In view of the possibility that many people, for one reason or another, do not agree with the statutory right of a person to make a will, propounders of a will should be allowed to question prospective jurors with respect to their feelings on that question. In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

Questioning of Jurors by Court or by Counsel. - Although this section assures a defendant of the right to have due inquiry made as to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant. The trial judge, in his discretion, may decide which course to pursue in a particular case. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1973); State v. Girley, 27 N.C. App. 388, 219 S.E.2d 301 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976).

Prohibiting Ambiguous or Confusing Questions. - Discretion over the inquiry on voir dire was properly exercised when the trial court prohibited ambiguous or confusing hypothetical questions. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978).

Refusal of Court to Ask Question Requested by Counsel. - If the court, when it conducted the questioning, declined to ask a question requested by the defendant's counsel, an exception should have been noted so that an appellate court could consider the propriety, pertinence and substance of such question. This procedure avoids repetitive questioning without precluding or restricting any inquiry suggested and requested by defendant's counsel, and is not violative of this section or otherwise objectionable. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972).

Effect of District Attorney's Improper Statements During Voir Dire. - In a capital case, improper statements made by a district attorney in the presence of prospective jurors during their voir dire examination may well be as prejudicial as a similar statement made by him during argument to the jury. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975).

Regulation of Voir Dire Rests in Trial Judge's Discretion. - Counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision, and the regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981).

Regulation of the manner and the extent of the inquiry on voir dire rests largely in the trial judge's discretion. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

Counsel's exercise of the right to inquire into the fitness of jurors is subject to the trial judge's close supervision. The regulation of the manner and the extent of the inquiry rests largely in the trial judge's discretion. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976).

The manner and extent of the inquiry of prospective jurors are matters committed largely to the discretion of the trial judge and are subject to his close supervision. State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978).

Judge's Discretion Is Subject to Review. - While the regulation of the manner and extent of the inquiry on voir dire rests largely in the trial judge's discretion, his exercise of discretion is not absolute and is subject to review on appeal. In re Will of Worrell, 35 N.C. App. 278, 241 S.E.2d 343, cert. denied, 295 N.C. 90, 244 S.E.2d 263 (1978).

B. CONCERNING CAPITAL PUNISHMENT.

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Voir Dire Should Be Based on Questions Phrased in Witherspoon Language. - Since Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) has so clearly specified the ultimate questions that must be answered, the voir dire examination of prospective jurors should be based on questions phrased in Witherspoon language, because unless this course is followed, new trials will often be necessary in cases otherwise free from prejudicial error. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

Propriety of Examining Jurors' Attitudes. - In order to ensure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment. State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1207 (1976); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

In a capital case both the State and the defendant may, on the voir dire examination of prospective jurors, make inquiry concerning a prospective juror's moral or religious scruples, his beliefs and attitudes toward capital punishment, to the end that both the defendant and the State may be ensured a fair trial before an unbiased jury. State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

In many capital cases solicitors (now district attorneys) may ask prospective jurors whether they have moral or religious scruples against capital punishment, and if so, whether they are willing to consider all of the penalties provided by law, or are irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974).

There was no error in permitting questions to be propounded to prospective jurors concerning their views about the death penalty. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

It was not improper on voir dire for the prosecutor to determine if jurors would be willing to impose the death penalty and what their views were on the death penalty. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794 (2005).

Scope of Inquiries Is Within Control and Supervision of Court. - The extent of the inquiries to prospective jurors concerning their attitudes toward capital punishment remains under the control and supervision of the trial judge. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

III. CHALLENGES FOR CAUSE.

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Purpose. - The right to challenge is not given so as to allow a party to pick a jury, but so that he may obtain an impartial jury. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973).

Excluding Jurors for Opposition to Capital Punishment. - If a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

Jurors who indicated they were irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence were properly excused for cause. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Where juror voiced general reservations about the death penalty, but made no affirmative, unequivocal statement that she was unwilling to consider the death penalty or that she was irrevocably committed to vote against it regardless of the facts and circumstances that might be revealed by the evidence, she was erroneously excused for cause. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

In a first-degree murder trial where prospective juror stated that knowing that the death penalty would be imposed he did not feel that he could vote for a verdict of guilty even though he was satisfied of defendant's guilt, the trial judge, in his discretion, and at the request of the prospective juror, in excusing the prospective juror did not commit prejudicial error. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

It is settled law that a challenge for cause should be sustained where the venireman challenged states unmistakably that he would, by reason of the death penalty, automatically vote against conviction without regard to any evidence developed at trial. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction. State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Erroneous allowance of an improper challenge for cause did not entitle the adverse party to a new trial, so long as only those who were competent and qualified to serve were actually impaneled upon the jury which tried his case. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975).

Excusal of Juror Without Challenge by Party. - In spite of the last phrase of subsection (a) of this section, it is the right and duty of the court to see that a competent, fair and impartial jury is impaneled and, to that end, the court, in its discretion, may excuse a prospective juror without a challenge by either party. State v. Smith, 290 N.C. 148, 226 S.E.2d 10 (1976), cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976).

IV. DISQUALIFIED JURORS.

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Subsection (c) is designed to protect the prospective juror's adversary in his pending case rather than to protect parties to cases in which he might serve as a juror. State v. Williams, 293 N.C. 102, 235 S.E.2d 248 (1977).

Subsection (c) subjects a litigant, rather than a witness, to disqualification as a juror when he has a suit pending and at issue in the court in which he is called to serve as a juror. State v. Williams, 293 N.C. 102, 235 S.E.2d 248 (1977).