Opinion
(June Term, 1863.)
1. It is no ground for a challenge to the array, in a capital case, that it does not appear from an order for a special venire facias that it was made in the case of the prisoner. It is sufficient if it appear that it was made at the term at which the trial was had.
2. A challenge to the array of jurors is generally founded on a charge of partiality, or some default in the sheriff or other officer summoning them.
3. Whether, where the manner of a homicide charged in a bill of indictment is by cutting the throat of the deceased with a knife, and the proof is that it was done by blows inflicted on the head with a gun, the variance is material, quere.
4. The court is not bound to give special instructions to the jury, at the request of counsel, on a hypothetical case.
INDICTMENT for murder, tried before Kerr, J., at Fall Term, 1862, of ROWAN.
The defendant was indicted for the killing of one John Cope, by cutting his throat with a knife, and in the same bill one Wilson McGrady was indicted for aiding and assisting in the same homicide. The case was removed to Rowan from the county of Cabarrus.
Upon the trial, one Mary Cope, wife of the deceased, testified that on Sunday, 8 December, 1861, Jacob Murph came to the house of the other defendant, McGrady, about 8 o'clock in the morning; that shortly thereafter Cope, the deceased, came to the same place in a buggy, (130) and she went out to meet him, and found that he had put his horse in the stable; he and McGrady were brothers-in-law; that in a short time Cope concluded that he would leave the place, and went to the stable to get his horse for that purpose, and witness went with him, but found the horse sick and unfit to be used; that they then returned to the house and found McGrady standing near the corner of the house; they (witness and her husband) entered the building and were standing near the door when Murph came up with a gun under his arm, pointing towards witness and deceased; that Murph said, "Good evening," to which Cope said, "Good evening, G_____d damn you; I will kill you"; that Cope then turned towards the prisoner and seized the gun, and succeeded in wresting it from the prisoner's hands; that the prisoner stepped back a little, and Cope fired the gun at him; that the witness then stepped back a little and took a seat in the house where she could not see the parties; that she heard the noise of a scuffle between them, and heard the sound of heavy blows, and heard the deceased say, "Oh, don't!" She also heard the prisoner say, "I have cut his damned throat"; that a few minutes afterwards she heard him say, "I have cut his damned throat"; that a few in the smokehouse, and then we will carry him to Beaty's old field"; that she heard chopping at the smokehouse, and saw McGrady coming from towards the stable, and on his going to the smokehouse, Murph again said, "We will put him into the smokehouse until night, and the take him to Beaty's old field"; this was about 2 o'clock in the evening; she got supper about sundown, of which the prisoner and McGrady partook, and then the former left the house and went off; but before he went, he told witness that if any one came there and inquired for him, to say that he had not been there since Thursday, and said further, "If you tell anybody what has happened, we will kill you"; that the prisoner did not return to McGrady's until 12 or 1 o'clock that night; that as soon as he came back he said to McGrady, "It is time to go"; that she, in a short time, heard the tramping of a horse in the yard and the noise of (131) a buggy, and then Murph and McGrady went away and did not return till about 3 o'clock, and that they then made up a fire and sat until about day, when Murph went off again; the gun to which witness referred was the property of the prisoner, which he carried away with him when he left on Monday morning; it was a rifle. This witness also testified that on Sunday before the killing took place, Cope told her that he intended to kill Murph wherever he met him, and that she had told Murph of this threat. The witness further stated that Murph, the prisoner, was in the habit of having his washing done at McGrady's, and frequently left his gun there.
(133) The State offered in evidence a letter, purporting to be from the prisoner, addressed to Mary Cope, wife of the deceased, which was objected to by the prisoner's counsel, but the State examined the witness, G. L. Gibson, touching the origin of the letter, who stated that while Murph was in jail, in Concord, he requested witness to go to the postoffice and inquire for a letter which he had written to Mary Cope, and if he found such a letter, to take it out. The witness did as directed, and found the letter in question. The prisoner's counsel objected to the reading of this letter, but the court overruled the objection, and defendant's counsel excepted. (The letter was not sent up in the bill of exceptions.)
On the trial of the cause the witness G. L. Gibson was asked by the prisoner's counsel if he had not gone to the witness Mary Cope and offered her money, which had been furnished by the prisoner, to go away and not testify in the cause. This evidence was objected to by the State's counsel, and the court rejected it. Defendant's counsel excepted.
On the trial of the cause, when the jurors were directed to be called, the prisoner's counsel objected to the whole venire, which had been summoned by an order of the court made on the day before. The objection was on the ground that it did not appear that the said jurors had been ordered by the court to be summoned in this particular case, but that it appeared from the minutes of the court that the order was made in the case of the State against McGrady. The court overruled the challenge, and defendant's counsel excepted.
After carefully recapitulating the evidence, the court charged the jury:
"1. If the jury believe that the prisoner went to the house of McGrady, at the time spoken of, for the purpose of carrying on an illicit intercourse with the wife of the deceased, and carried his rifle with him for the purpose of using it against the deceased if a difficulty or encounter should arise between them, and he then took the life of the deceased by the infliction of the violent blows on the head and cutting of his throat, as the evidence indicated, then it was a case of murder.
"2. If the jury believe that the prisoner went to the house of (134) McGrady with no unlawful purpose, and, getting there, he was involved in a fight with the deceased, without provocation on his part, and the deceased wrested the gun from him and fired it at him, and then at the spot where the fight commenced, the prisoner inflicted the blows with the rifle, and cut the throat of the deceased in the heat of blood, then it was only a case of manslaughter.
"3. If the jury believed that the deceased was struck down by the prisoner, by blows with a rifle, as testified to by Dr. Beatty, and as indicated by the prisoner's confession, and yet, life being not extinguished by the blows, the prisoner took the deceased and moved him to the smokehouse, and there, finding him still alive, took a knife from the crack of the smokehouse and cut the throat of the deceased, and that extinguished his life, it was a case of murder, and was such a killing as was charged in the bill of indictment.
"4. That the jury must be satisfied that the killing was in the manner and form as charged in the bill, and if they believe that the deceased died from wounds inflicted with the rifle, the jury ought to acquit."
The prisoner's counsel asked the court to charge the jury that, supposing the prisoner went to the house of McGrady, and took the gun with him only for the purpose of defending himself, and that the fight occurred and the throat was cut at the place where the fight commenced, then it was a case of manslaughter only. The court declined giving the instruction, and defendant excepted.
Prisoner's counsel further moved the court to charge the jury that if they believed the fight was as the female witness (Mrs. Cope) described it, and that the deceased got the gun and the prisoner drew his knife to defend himself from the attack of the deceased, and then cut his throat to prevent deceased from killing him, then it was a case of justifiable homicide. The court declined to give this instruction, and defendant again excepted. (135)
The defendant was found guilty of murder. Upon which, judgment of death was pronounced, from which the defendant appealed to the Supreme Court.
Attorney-General for the State.
No counsel appeared for prisoner in this Court.
We have examined with care the various objections set out by the prisoner in his bill of exceptions, and are prepared to state the conclusions to which we have been led.
1. The challenge to the array of jurors made by the prisoner has nothing to sustain it. Such a challenge is an exception to the whole panel, and is generally founded on a charge of partiality, or some default of the sheriff or other officer who summoned them. 3 Bl. Com., 359; 4 ibid., 452. In the present case the jurors excepted to were summoned on a special venire facias issued by an order of the Court and executed by the sheriff. No exception is taken to the officer nor to the manner in which he discharged his duty; the objection is founded on the allegation that the order was not made in the case of the prisoner. But we can see no necessity that the record should show in what particular case the court made the order. It is sufficient if it appear that it was made at the term at which the trial was had. When summoned, the jurors may be called in any case in which a person may be tried at the term for a capital offense. Rev. Code, ch. 35, sec. 30.
2. The objection to the introduction as evidence of the letter written by the prisoner to Mary Cope is, we suppose, abandoned, as no copy of the letter has been sent up, though stated to be annexed to the bill of exceptions as a part of it.
3. The purpose for which the prisoner's counsel proposed to ask the witness G. L. Gibson if he had not gone to the witness Mary Cope and offered her money, furnished by the prisoner, to go away, is not (136) stated. We are unable to perceive how the exclusion of it by the court could have prejudiced the cause of the prisoner.
4. The charge of the court to the jury as to the law applicable to the different views — which they might take of the testimony was certainly as favorable to the prisoner as he had a right to claim. Whether upon the point in relation to the manner of the killing it was not more so may, perhaps, admit of doubt. It is true that if a man be indicted for one species of killing, as if by poison, he cannot be convicted by proving a totally different species of death, as by shooting, starving, or strangling; but if the means of the death proved agree in substance with those charged, it is sufficient. Thus, where the death is caused by any weapon, the nature and description of the weapon ought to be stated; yet if it appear that the party was killed by a different weapon, it maintains the indictment; as if a wound or bruise be alleged to be given with a sword, and it proves to be with a staff or axe, the difference is immaterial. See Ros. Crim. Ev., 706; 1 East Pl. Cr., 341; 2 Hale Pl. Cr., 185. It is unnecessary to pursue the inquiry, because the error, if there were one, was in favor of the prisoner, and he cannot object to it.
5. The special instructions asked for by the prisoner's counsel were upon a hypothetical state of facts not presented by the evidence, and his Honor was, therefore, not bound to give them.
We have examined the whole record, and have found therein
PER CURIAM. No error.
Cited: S. v. Hensley, 94 N.C. 1028; Boyer v. Teague, 106 N.C. 620; S. v. Moore, 120 N.C. 571.
(137)