
    STATE v. JACOB W. 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< the same homicide.- The case was- removed- to -Rowan from-the county of Cabarrus.-
    Upon the-trial,-one Mary ©ope,, wife of the-deceased, testified, that on Sunday,- 8th December, 1861, Jacob Murph came to the honse of the other defendant, McGrady, about eight o’clock in the morning; that- shortly thereafter Cope, the deceased, came to the same place in a buggy, and she went out to meet Mm, 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 ■fatness and deceased; that Murph said, “ good evening;” to which Cope .said, “ good evening G — d damn you,” “I will kill yon ;” 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 alittle 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 hoard the deceased say, “ oh don’t.” She also heard the prisoner say, “ I have cut his damn’d throat;” that a few minutes afterwards, she heard him say, “ we will take him and put him in the smokehouse, and then we will carry him to Beaty’s old field;” that she heard chopping at the smoke-house and saw McGrady coming from towards the stable, and on his going to the smoke-house, Murph again said, “ we will put him. into the smoke-house until night, and then take him to Beaty’s old field;” this was about two 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 ho went, he told witness that if any one came there and enquired for him, to say that he had not been there since Thursday, and said further, “ if you tell any body what has happened, we will kill yon ;” 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 a buggy, and then Murph and McGrady went away and did not return till about 3 o’clock, and that they then made up afire and sat until about day, when Murph went off again; the gun, to whieh 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 atMcGrady’s, and frequently left his gun there.
    
      Dr. Beatty testified, that he found the body of the deceased in his old field on Tuesday, 10th December, 1861, and near to where the body ^as, he found a horse standing tied among the pines; that a buggy was likewise there, having hair on it; that the throat of the deceased was cut from ear to ear, and there were very severe wounds on the left side of the head, evidently inflicted with a heavy iron instrument. He also stated, that the wounds on the head were, in his opinion, of a character to produce instant death, in a great majority of cases ; thought it possible for life to remain after the infliction of such wounds, but not probable.
    
    
      Nathaniel Johnson, another witness for the State, said, that on Monday, after the killing, he went to the house of McGra-dy, and there saw signs of blood and brains near the house, and saw where chips and dirt had been scraped away near the house door.
    
      Ool. Goleman was examined by the State; he stated that he went to the house of McGrady on Wednesday after the homicide and saw signs of the scuffle or conflict near the door and between the house and the smoke-house; that he saw signs of blood, and saw where the earth had been scraped and the surface removed.
    - George L. Gibson, another witness for the State, testified, that he was commandant of a military company in Cabarrus, which the prisoner had joined before he left the county; that be went to Raleigh after the prisoner, on learning that he-was there, and' had been put undfer arrest by Gol. Avery? that he found' the prisoner in RalbigH, and having authority to do so, he brought him- back to Cabarrus to answer for the' killing of Cope'; that shortly after taking-Murph-into his-cns-tody, he told- him- he might as well tell' all about it, for he-(the witness) coul'd' db him' neither good1 nor harm ; that the prisoner then- said, He did-’ kill- Cope; and- did it in self-defense ;• that he went to- the house of McGrady on Sunday and found Cope there p that he- spoke to him; (Cope,) when.' he replied, “-dhtmi- you, I have a great mind to- kill you that Cope then came towards him and they got into-a light that he struck Cope on the- head1 with a gun and knocked him down, and struck him two or three- blows afterwards, and thought he was dead, but on hearing. liim> 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.
    
      Attorney General, for the State.
    No'counsel appeared for prisoner in this Court.
   Battue, J.

"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 Black. 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 ; Eevised Code, chap. 35, section 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 stated. We are unable to perceive bow the exclusion of it by the Court, could have prejudiced the cause of -the prisoner.

4. The charge of the-.-Oourt to the jury, -as to the law ap-' ¡plicable 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 de-scription of the weapon ought to he 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’s Pleas of the Crown, 341; 2 Hale Pl. Cr. 185. It is unnecessary to pursue the-enquiry, 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 coun•sel, were upon a hypothetical state of facts, not .presented by the evidence, and lii-s Honor was, therefore, .not bound to .give them.

We have examined the -whole record, and not having found therein any error, we must direct a certificate to that effect, •;to be sent to the Superior-Court of Rowan.

Per CueiaM, .Judgment .affirmed.  