We have carefully perused and considered the charge given by the judge to the jury, and have been unable to discover any error. The principles of law, applicable to the facts of the case, were fairly and fully expounded by him, and left no ground of complaint on the part of the prisoner. Nor have we been able to detect any error in his refusal to give the several special instructions asked by the prisoner, nor in his refusal to permit the prisoner to file a plea in abatement, or to entertain his motion to quash the indictment.
Whether a plea in abatement shall be allowed, or a motion to quash entertained, after the' plea of “ not guilty ” has been entered, are matters addressed entirely to the discretion of the court. Any special matter in abatement must be pleaded at the time of arraignment, before the plea of “not guilty,” (Arch. Cr. Pl., 78 a), and motions to quash after plea are only allowed at the discretion of the court. State v. Eason, 70 N. C., 88.
The exception taken on the trial to the ruling of the court in permitting the solicitor to stand aside jurors until the panel was exhausted, cannot be sustained. It is a practice which has long prevailed in our courts, in the trial of capital cases, and has been held to be no ground of exception, where it has been reasonably exercised by the court, and the prisoner’s challenges have not been exhausted before the “jurors stood aside” have been ten-*679derecl. State v. Benton, 2 Dev. & Bat., 196. Here, there were not more than three jurors made to stand aside from either panel, and the prisoner’s challenges were never exhausted.
We are of opinion His Honor committed no error in his refusal to give the instructions prayed for. Upon the evidence in the case, he would not have been warranted in giving those instructions. The first, second, third, fourth, fifth, sixth, eighth, sixteenth, eighteenth, nineteenth and twentieth instructions asked are predicated upon the assumption that the warrant under which the arrest was made is void. But is it void ? This is the hinge upon which the case turns.
It is insisted by prisoner’s counsel, that the same particularity is required in warrants issued by justices of the peace as in indictments; and that the warrant, under which the prisoner was arrested, is defective in omitting the word “felonious,” and in not alleging the ownership of the property charged to have been stolen. These would certainly have been fatal defects in a bill of indictment for larceny. But, in warrants, the law does not require the same particularity as in indictments; and although a warrant may be defective in form, or not strictly legal, if it is for an offence within the jurisdiction of the justice, the officer to whom it is directed, if a regular officer, is bound to obey it, and if a special officer, who, though not bound to obey, yet undertakes to execute it, they are equally protected by the law.
In 1 Hale P. C., 460, it is laid down, “that although the warrant of the justice be not in strictness lawful, as if it express not the cause particularly enough, yet, if the matter be within his jurisdiction as justice of the peace, the killing of such officer, in execution of his warrant, is murder; for in such case, the officer cannot dispute the validity of the warrant.”
This passage of Hale was cited with approval by Judge Lumpkin of the supreme court of Georgia, in Boyd’s case, 17 Ga., 194, where a similar objection was made to a warrant as in this case. The court say: “ If this be law, and who will doubt its reasonableness, it is decisive of this exception. It would be *680monstrous to lay clown a different rule. It would put iu jeopardy the life of every officer in the land. It never could be intended that they should determine, at their peril, the strict legal sufficiency of every precept placed in their hands.” See also, 2 Hale, 111; King v. Wilkes, 2 Wil. Rep., 151; and Rex v. McCulley, 9 Coke Rep., 117, where it was resolved by all the judges, met in conference upon the record of conviction in that case, that if there be error in awarding process, or in the mistake of one process for another, and an officer be slain in the execution thereof, the offender shall not have the advantage of such error, but that the resisting the officer, as he comes in the King’s name, is murder.”
In Chitty’s Criminal Law, 41, we find the doctrine thus stated: “It does not seem to be necessary to set out the charge, or offence, or evidence, in a warrant to apprehend, though it is necessary in the commitment; and it has been observed that cases may occur in which it would be improvident to let even the peace officer know the crime of which the party to be arrested is accused.” From this it will be seen, that more particularity and certainty in the description of the crime charged are required in commitments than in warrants; yet it is held, that though in a commitment for felony it was necessary that it should specify the species of felony, as for felony for the death of J. S., or for burglary, “it was not necessary to allege in the mittimus that the offence was ‘ feloniously’ committed.”
In Rex v. Croker, 2 Chitty, 138, the defendant was committed for embezzling bank notes; the warrant did not state that the act was done “feloniously,” and it was therefore claimed that the defendant was entitled to his discharge. But the court said, a commitment need not have the precision of an indictment. The commitment states general evidence, and though not formally sufficient to find him guilty, yet it is sufficient if the corpus delicti be shown to us to warrant the conviction.
The conclusion that we deduce from the authorities is, if the warrant is for an offence within the jurisdiction of the justice, and the crime charged is described with sufficient precision to *681apprize the accused 'of the offence with which he is charged, the warrant is good and will protect the officer. But this applies only to those cases where the justice acts ministerially, as in warrants to arrest offenders where he has no final jurisdiction. Where he takes cognizance of criminal actions within his jurisdiction, the warrant is “the indictment,” and must set out the facts, constituting the offence, with such certainty that the accused may be enabled to judge whether they constitute an indictable offence or not, and that he may be enabled to determine the species of offence with which he is charged. State v. Bryson, 84 N. C., 780; State v. Hawes, 65 N. C., 301.
We are of opinion that the warrant in this case is not illegal, and was a sufficient justification to the deceased, and the slaying him while acting in obedience to its commands, under the circumstances of this case, constitutes the crime of murder.
The seventh, ninth, fifteenth and seventeenth, instructions asked are not supported by any evidence in the case; the tenth is not sustained by any authority; the eleventh, twelfth, thirteenth and fourteenth are met by the proofs that the warrant was read to the prisoner by the deceased at the time of the arrest, and he was told that the arrest was made by the authority of that warrant.
There were some exceptions taken to the evidence on the trial, but deeming them untenable, it is needless to consider them.
There is no error. Let this be certified, &c.
No error. Affirmed.