60 N.C. 129 | N.C. | 1863
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 venirefacias 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 *79 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,
(137)