State v. Murph

It is no ground fon a challenge-fo the array, in a capital case, that if 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. A challenge tn the array of-jurors is generally founded- on a charge of partiality, or some default'iu the sheriff or other officer, summoning them. Whether, where-the manner of a homicide, charged-in a-bill of indicttnent,.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 — giicre. The Court is not bound to give special'instructions to-the jury, at'tlic request of counsel, on a hypOthetical’case;

This was-an indictment for murder, tried--before Kerr,.. J.,at the Fall-Term,. 1862, of-Rowan Superior Court. 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: wasrindicted .for aiding and assisting-'in make a noise, he-took a knife, which he found stickingim the-lbgs of the smokehouse, and' cpt his throat. Witness farther testified, that' Murph further stated, that Cope bliamed him for preventing his wife from going with him to Iredell. — Witness asked the prisoner, if he had'not been too intimate with Cope’s wife, to-which he said “they had been together-for a-year and better,” but he denied" that he ever tried' to- keep Cope’s wife-from going with him to Iredell. James B. Gibson, another witness for the State; stated’ that he’ had' a conversation with Murph at his (witness’s) house on-the subject of the homicide; that the conversation was voluntary on the part of the prisoner that neither promise or-threat was used to induce him to confess any' thing ; that the-prisoner said'that he Had gone to the-house of McGrady, and found Cope there standing-at the door ; that as soon as he(M.) approached1 the door, Cope threatened-' to kill him-; a. struggle ensued’ between- them, and Cope fired1 the gun at him; that he then struck Cope-on the head and-knocked him. down; that Cope laid thei’e awhile; and-then McGrady carried him to the smoke-house ;■ that when- they got there, he-found that Cope was not dead, and he (M.) then cut his throat and put him in the smoke-house, and .after supper he took him to a piney old field and hid him in the pines. The State offered in evidence aletter, 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, GL L. Gibson, touching the origin of the ¡letter, who stated, that while Murph was in j ail, in Concord, he requested witness to go to the post-office and enquire for a ¡letter, which he.had written to Mary Cope, andif 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 over-ruled the objection, ■and defendant’s counsel excepted. (The letter was .not sent mp in the bill of exceptions.) On the trial of the cause, the witness, GL 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 t© be summoned .in this particular case, but that it appeared from the minutes of the Court, that the order was ■made iu the case of the .State against McGrady. The Court •over-ruled the challenge, and defendant’s -counsel excepted. ' After carefully recapitulating the evidence, the .Court charged .the jury, “1st. 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 bis. throat, as the evidence indicated, then it was a case of murder. “ 2. If the jury believe that the prisoner went to- the house ©f 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 bl'ood, then it was only a case ©f'manslaughter. “ 3. If the jury believe that the deceased was struck down by the prisoner, by blows with a riñe-, as testified to by Dr. Beatty, and as indicated by the prisoner’s confession, and yet, life- being not extinguished by the blows, the1 prisoner took the deceased and moved him to the- smoke-bonse, and there finding him still alive, took a knife from the- crack ©f the smoke-house 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 believed 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 Mc-Grady, 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 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 hom-ieide. The Court declined to give this instruction, and defendant again excepted. The defendant was found guilty of murder. Upon which,, judgment of death was pronounced, from which the defendant appealed to the Supreme Court.