Opinion
(December Term, 1864.)
1. If an indictment for murder charges that A. killed the deceased, and that others were present, aiding and abetting, and it is proved that the deceased was killed by some one with whom A. was acting in concert, and that A. was present, aiding and assisting, the jury should be instructed to find A. guilty.
2. If a challenge by the prisoner for good cause be disallowed, and the juror be challenged peremptorily by the prisoner, and the panel is completed, the prisoner having challenged peremptorily a smaller number than twenty-three, this is no cause for a venire de novo.
3. A juror, challenged by the prisoner because he had formed and expressed an opinion that the prisoner was guilty, says on his examination by the court that he has formed and expressed an opinion to that effect from rumor, but that he thinks he can give an impartial verdict on the trial, is adjudged by the court to be indifferent between the parties, and is tendered to the prisoner: this is no error of which the prisoner can complain.
(485) INDICTMENT for the murder of John C. Howard, tried before Gilliam, J., at Fall Term, 1864, of MOORE.
The indictment charged that the deceased, John C. Howard, was killed by the prisoner, and that others, to the jurors unknown, were present, aiding and abetting him in the act of killing.
"In forming the jury, the prisoner challenged one Donald McDonald, and assigned for cause that he had formed and expressed an opinion that the prisoner was guilty. The juror, on his oath, stated that he had formed that opinion, but had not before expressed it; that his opinion was formed on rumor alone; that he had great confidence in the truth of the rumors he had heard, and that he was afraid they might have some influence on his judgment." Upon his further examination, he said that "he was satisfied he could render an impartial verdict upon the evidence as it might come out on the trial, uninfluenced by the rumor which he had heard." The prisoner's counsel insisted that the juror was not indifferent; but the court being of opinion, from the examination of the juror and from his whole demeanor, that he was indifferent, disallowed the challenge and directed him to be tendered, when he was challenged peremptorily by the prisoner. Another juror, named Bryant Dowd, was challenged by the prisoner for the same cause. He stated, on oath, that he had formed and expressed the opinion that the prisoner was guilty, and that he had formed it on information derived from a person who, not long after the occurrence, had been to the place where the homicide was committed, and from information derived from other persons; but that he was satisfied he could give the prisoner a fair and impartial trial, uninfluenced by anything he had heard. He was directed to be tendered, and the prisoner challenged him peremptorily.
When the jury was completed, the prisoner had made (486) twenty-one peremptory challenges.
On the trial, witnesses testified that on 6 August before, a company of soldiers under the command of Lieutenant Mills, an officer of the Confederate States Army, having arrested three deserters, were carrying them from Carthage, in Moore County, to a station on the railroad, whence they might be sent on to the army. While the soldiers were marching along a road, they were shot at by persons about fifteen steps from the road, and John C. Howard, one of the soldiers, was killed. Two volleys were fired in quick succession from the woods through which the road ran. In the first volley eight or ten guns were fired. Immediately after, the last volley, one of the soldiers rushed into the woods in the direction from which the guns were fired, and he saw several men running away. He saw the prisoner sitting at the foot of a tree about fifteen steps from the road, in the direction from which the deceased was shot. The prisoner had a gun in his hand, which was empty, and had, apparently, just been discharged. There were signs on the ground and grass of several men having been recently standing close to the tree at the foot of which the prisoner was sitting, in a line parallel to the road; and there were marks of powder on the leaves about 4 feet from the ground, between the tree and the column of soldiers. None of the persons in the woods were identified except the prisoner.
The counsel for the prisoner contended that he could not be convicted unless the jury were satisfied that the prisoner discharged the gun which caused the death of the deceased, and requested the court so to charge the jury. The court declined to give the instructions asked, and instructed the jury that if they were satisfied from the evidence that the party in the woods fired upon the party in the road; that the decesed (487) [deceased] was thereby killed; that the prisoner was one of the party in the woods, and was aiding and abetting the others; then they might convict the prisoner, although the discharge of his gun may not have given the wound of which the deceased died; and even though the prisoner may not have discharged his gun at all; for that in combinations of the kind alleged, the mortal wound, though given by one of the parties only, is considered, in the eye of the law, as given by every individual present, aiding and abetting.
The prisoner's counsel then asked the court to instruct the jury that there was no evidence of any combination between the prisoner and the others in the woods; but the court declined to give the instruction.
There was a verdict of guilty, and from the judgment thereon the prisoner appealed.
Attorney-General for the State.
No counsel for prisoner.
The exceptions made to the ruling of the judge below on the formation of the jury cannot avail the prisoner.
Both the men, when tendered, were rejected by peremptory challenges.
The challenges of this kind had not been exhausted at the completion of the jury (only 21 having been made), so that no one was upon the jury against the prisoner's will. If, therefore, an error was committed in tendering a man, it did the prisoner no wrong. It is due, however, to state that no error, of which the prisoner can complain, is apparent upon the record. The subject of challenges to jurors underwent in this Court so full an examination in S. v. Benton, 19 N.C. 196, and the principles there discussed and announced have been so often reaffirmed and illustrated by subsequent cases that we deem it unnecessary to enter upon it anew. Several of the later cases will be found collected in the note to Benton's case (second edition).
(488) The instructions given by the court, on the principal ground of defense taken by the prisoner's counsel, are in strict conformity to law. These principles are of common learning. 1 Hale P. C., 462.
The court was requested to charge the jury that there was no evidence of a combination. This the court declined — and, as we think, properly declined. There was evidence, and abundant evidence, as we think.
We have examined the whole record in this case, and do not find any error.
PER CURIAM. No error.
NOTE. — When one person is present aiding and abetting another in the commission of a crime, both are guilty. S. v. Merritt, 61 N.C. 134; S. v. Rawls, 65 N.C. 334; S. v. Hill, 72 N.C. 345; S. v. Gaston, 73 N.C. 93.
It is not a good cause of challenge that the juror has formed and expressed an opinion adverse to the prisoner, such opinion being founded on rumor, and the juror further stating that he could try the case, according to the law and the evidence, uninfluenced by any opinion he may have so formed from such rumor. To disqualify the witness the opinion should have been fully made up and expressed. S. v. Collins, 70 N.C. 241. See Baker v. Harris, ante, 271.
Cited: S. v. Holmes, 63 N.C. 21; S. v. Hill, 72 N.C. 349; Capehart v. Stewart, 80 N.C. 102; S. v. Brittain, 89 N.C. 504; S. v. Hensley, 94 N.C. 1029; S. v. Green, 95 N.C. 613; Dunn v. R. R., 131 N.C. 447; S. v. Robertson, 166 N.C. 362; Oliphant v. R. R., 171 N.C. 304.