State v. Cockman, 60 N.C. 95, 1 Win. 95 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 95, 1 Win. 95

THE STATE vs. WILLIAM S. COCKMAN.

If an indictment for murder charges that A hilled 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 ia concert, and that A was present, aiding And assisting, the jury should he insfruc-ted to find A guilty of murder.

If a challenge by the prisoner for good cause be disallowed, and the juror be challenged peremptorily by the prisoner, and the pannel is completed, the prisoner having challenged peremptorily a smaller number thin "twenty-three, this is no cause for a venire de novo.

A juror, challenged by ¿he prisoner because ho Had formed add expressed an opinion that the prisoner was guilty, says on his examination fey the Court, that he has formed and expressed an opinion to that effect,-from rumor, but that he íhinks 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.

The case of the State vs. Beaton, 2 Dev. and Bat 196, cited and approved.

This was aa indictment for the murder of John C.. Howard, tried before Gilliam, J., at Fall Term, 1864, of Moore Superior Court. -

The indictment charged that the deceased, John C. Howard, was killed by the prisoner, and that others, to the jurors unknown, wore present, aiding and abetting him in the a*t of killing.

“In forming the'jury, the prisoner challenged one Donald McDonald, and assigned for «au.se 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 oil 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 phal-lenged by the prisoner for the same effuse. He stated, on oath, that “he had. formed and expressed th© 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, iminfluenced' 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 twenty-one peremptory challenges.

On the trial, witnesses testified, that on the 6th of August before, a company of soldiers under the command of Leut. 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 0. Howard, one of the soldiers, was killed. Two vollies were fired in quick succession, from the' woods through which the road ran. In the first volley eight or ten gun* 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 runnixig away. He saw the prisoner sitting at the foot of a tree about fifteen steps from the road, in the direction front which the deceased was shot. The prisoner had a gun in his hand, which was empty, and had, apparently, just been discharged. There wea-e signs on the ground and the grass of several men having been recently standing close to the tree, at the foot of which the prisoner wa* -sitting, in a line parallel to the road ; and there were marks of powder on the leaves about four feet from the ground, between the cree and the.column of soldiers.— .None of the person's 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 giye 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 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 ef the kind alledged, the mortal ‘ wound, though given by one of the parties,only, is considered, in the eye of the law, a* 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 thereou, the prisoner appealed.

Attorney General for the State.

No counsel for the prisoner in this Court.

Manly, 'J.

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 per-' «rnptory challenges.

The challenges of this kind had not been exhausted at the completion of the jury, (only 21 having been made) no'that ño 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 t'he record. The subject of challenges to jurors, underwent in this Court sb full an examination in the case of Benton, 2 Dev. and Bat., 196, and the principles then discussed and announced have been so often re-affirmed and illustrated by subsequent cases, that we deem it unnecessary to enter upon it anew. Several of the later cases will bo found collected in the note to Benton’s case, (second, edition.)

The instructions given by the Court, on .the principal ground of defense taken by the .prisoner's counsel, are in fc'iict conformity to law.

These principles are oí common learning. 1 Hale, 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 And any erior.. Let this opinion be certiñed, to the end that the Court below may proceed according to law.