
    THE STATE v. JOHN OWEN.
    A special venire having been summoned for the trial of a prisoner upon a day previous to the day of trial, held that a successful challenge by the prisoner to the array of the original panel did not necessarily affect the competency of the special venire to act as jurors in the case.
    Where one who had been insulted ran a short distance to his house to procure a gun, and then pursued the deceased, (who had ridden off,) in order to exact an apology, or failing in that, to do him great bodily harm, or Mil him, held that, if upon his approach, the deceased turned upon him, putting his hand to his side as if to draw a weapon, and was thereupon killed by a blow of the gun, the prisoner was guilty of murder.
    
      (State v. Benton, 2 D. & B., 196; State v. Lytle, 5 Ire., 58; Slate v. Shaw, 3 Ire., 532; State v. Madison Johnson, 1 Ire., 354; State v. Jacob Johnson, 2 Jon., 247; cited and approved.)
    Murder, tried at Fall Term 1867 of the Superior Court of Gaston, before Gilliam, J.
    
    Upon the trial the prisoner challenged the array of the original panel on the ground that the jury lists had not been made out in accordance with the statutes of the State, or with the order of General Sickles. The cause was admitted by the Solicitor, and by consent the array was quashed. A special venire had been ordered on a previous day, and as the names upon it were being called, the prisoner challenged that array on the ground that as the original panel had been set aside, the special venire could not be resorted to. This challenge was overruled, and a jury was drawn from this panel. To this the prisoner excepted.
    After the State had made out its case, the defendant introduced Ur. Sloan, and proceeded to give in evidence (no objection being made) a conversation about the homicide between himself and the witness a few days after it occurred. In the course of that conversation the prisoner, after giving. an account of his having gone to Beatty’s Ford with the deceased in his buggy in the former part of the day, of his-, returning in the same way with him, and their eating dinner together at the prisoner’s house, of some quarrel on politics in the house and an indulgence by the deceased in drinking, of his being helped by the prisoner into his buggy and starting towards home — went on to say that he accompanied the deceased to the gate, and when the latter had gotten outside, some conversation ensued, in the course of which the deceased told one Caldwell who was present, “Owen is the damnedest rascal I ever saw,” and after something more, “ that he might help himself.” Prisoner replying, “if you will give me a few minutes, I will help myself,” went to- the house, and getting a gun, returned, and finding the deceased had gone, pursued him. When he overtook him the deceased got out of his buggy and came to meet him.. He added that he knew deceased was armed and always went so, and seeing him put his hand to his side as if to draw a pistol, he struck downward with, his gun and deceased fell like a beef.
    Upon this the Court was asked to charge the jury that if" they believed the above to be a true account of the homicide, and that the prisoner killed the deceased to save his own life, he was guilty of manslaughter only.
    The' Court declined to give that instruction, and told the-jury that if the prisoner armed himself with a gun and followed the deceased in order to demand satisfaction for the. insult which he had received, or failing in that, to kill the-deceased or do Mm some great bodily harm, the killing, even as he had described it to Dr. Sloan, would be murder.,
    Verdict Guilty; Rule for New Trial discharged; Judgment, and Appeal.
    
      Vance and Bragg, for the prisoner.
    
      Attorney General, contra.
    
   Battle, J.

We have examined with care the errors assigned in. the bill of exceptions, both for a venire de novo and for a' new trial, without being able to find anything to sustain either of them.

The objection to the formation of the jury, upon which the motion for a venire de novo was founded, is clearly untenable. ' The challenge to the array of the original panel of jurors by the prisoner, and the admission by the Solicitor for the State of the cause of challenge, made it absolutely necessary to resort to the special venire, just as it would have-been had the prisoner challenged each juror separately. In the latter case the jurors summoned on the special venirewould have properly been called in, and we cannot perceive any good reason why the same course was not admissible-when the whole original panel was set aside at the instance-of the prisoner. State v. Benton, 2 D. & B., 196; State v. Lytle, 5 Ire., 58; State v. Shaw, 3 Ire., 532.

The objection to the charge of the Judge upon wdrich the-motion for a new trial was based is also untenable. The-instruction which the prisoner’s counsel requested to be given the jury upon the testimony of his witness, Dr. Sloan, was, that if they believed the circumstances of the homicide were correctly stated by the prisoner in his interview with the witness Sloan, and that the prisoner killed the deceased to save his own life, he could not be convicted of murder, but of manslaughter only. The Judge declined to-give the instructions in the terms asked, and we think he did so properly, because it left out of view the material and important fact, that the testimony of the witness-tended to prove that the prisoner had followed the deceased with a deadly weapon for the purpose of demanding satisfaction for the insult given him, and to kill deceased, or to do-him great bodily harm, should the demand for satisfaction be refused. The Judge, therefore, was right to adapt his -charge to the facts proved, and according -to them the prisoner was undoubtedly guilty of murder. See State v. Madison Johnson, 1 Ire., 354, as explained and corroborated in State v. Jacob Johnson, 2 Jon., 247.

It must be certified to the Superior Court of law for the county of Gaston that there is no error in the record.

Per Curiam. There is no error.  