(after stating the facts). The first exception taken by the prisoner, was to the ruling of the Court in disallowing his challenge to the array. But there was no error in that- — for a challenge to the array can only be taken when there is partiality or misconduct in the Sheriff) or some irregularity in making out the list. Wharton’s Am. Cr. L., §2946. There was here no default in the Sheriff. One of the persons named as jurors could not be summoned, because he was dead, and the other three could not be summoned, because they could not be found. The Sheriff returned these facts. What more could he do?
The second exception was to the Court’s overruling the prisoner’s exception to the admission of the testimony of Dr. White, as an expert, and this exception is put wholly on the ground that he had not been examined by the State Board of Examiners. This is a virtual admission of his competency, except for that.
*874• On his preliminary examination, he clearly qualified himself to testify as an expert, under the rules laid down by this Court in several cases, notably in State v. Sheets, 89 N. C., 543; State v. Cole, at this Term: and we know of no rule of evidence or of law, that would exclude his testimony, because he had not been examined by the Examining Board, when he has shown himself to he otherwise qualified.
The third exception was to the ruling out of what Mi’s. May-berry said to her husband, about some one being killed. There was no error in that. In her examination in chief, she had stated that she heard some quarreling, and something that sounded like two licks, but said nothing about any one being killed, and on re-direct examination, she was asked, after objection by the Solicitor, if she had made the same statement to anybody else, and she said she had told it to her husband, and told him that she thought some one had been killed. This was properly ruled out, because she had made no such statement on her examination in chief. It did not amount to anything in any view of the case. What she thought, could not possibly have affected the minds of the jury in the least, and it is always better to rule such im.material questions in favor of the defendant in criminal actions. To do otherwise, only gives the defendant grounds of appeal, and often has no other effect than to delay and obstruct the course of justice.
The fourth exception was to the refusal of the Court to give the special instructions asked. We are unable to discover any error in the rulings of the Court upon the instructions prayed by the prisoner.
The first instruction was given. The second instruction was properly refused. What was the instrument used in inflicting the mortal wound, was a question for the jury, and if they should find it was such a stone as that described by the witnesses, then it was a question of law to be decided by the Court, whether it is a deadly weapon or not. State v. West, 6 Jones, 505; State v. Collins, 8 Ired., 407.
*875The Court gave the third instruction as prayed for.
Therewas no error in refusing the fourth instruction. Theexception is predicated upon the assumption, that if the prisoner in throwing the rock, had killed Redman instead of Mason, it would have been only manslaughter, and consequently, if in throwing it at Redman, he struck and killed the deceased, it would still be only manslaughter. But according to the evidence, if he had struck and killed Redman, under the circumstances of the case, it would have been murder; for there was no fact proved, that tended to excuse or mitigate the act, even if Redman had been the victim instead of the deceased. The instruction given by the Court in reference to that exception, was without error, and well warranted by the facts of the case.
The sixth instruction asked was, “That a weapon might be a deadly weapon, when used on a small or feeble man, that would not be a deadly weapon when used on a large and powerful man.”
This instruction ought not to have been given, and was properly refused, for there was no evidence to which it applied. There was no evidence that the deceased was a small or feeble man; for aught that appears, he may have been a very stout and powerful one. The instruction involves a mere abstract proposition, which the Court is not bound to give, and in fact should not give. State v. Martin, 2 Ired., 101; Walker v. Baxter, 1 Ired., 203.
It was further contended by the prisoner’s counsel, that there was error in that part of the charge of the Court, in which it was said: “If the State has fully satisfied you, that the prisoner at the bar threw a rock, weighing one pound, or one pound and a half, or other missile, intending to do great bodily harm to Thomas Redman or to the deceased, and the deceased was stricken with the rock or other missile, and was thereby killed, he would be guilty of murder, though he did not intend to kill either.” It was insisted that it should have been left to the jury to determine whether the wound given the deceased was *876inflicted with a rock or other missile, and if with some other missile, whether it was clearly calculated to do great bodily harm, for the counsel contended, that if inflicted with a missile not calculated to kill, or do great bodily harm, it bould not, upon the authorities cited by him, be murder, although there was no provocation. But we are of the opinion, that the facts of this case, do not warrant the application of the principal. Upon the authority of State v. Gould, 90 N. C., 658, and the authorities there cited, it could make no difference whether the mortal wound was inflicted with a rock, as charged in the indictment, or with “some other instrument of the same nature and character, when the method of the operation is the same.” Whatever was the instrument used in this case, it was one thrown at the deceased, and was of such a deadly character as to break his skull and cause his death. It must necessarily have been of such a nature as to be a deadly weapon, or one calculated to do great bodily harm. But- there was no evidence iu the case, tending to show that the missile thrown was one of a nature not calculated to produce death or great bodily harm. All the evidence in the case pointed directly to the rock, weighing from one pound, to a pound and a half, with which the deceased was stricken, and the jury were well warranted by the evidence, in finding that the deceased was stricken with the rock, which caused his death, and that being so, the Court committed no error in charging them, that under such circumstances, the prisoner was guilty of murder.
The last exception taken by the prisoner, to the abuse of privilege by the Solicitor in his argument to the jury, was only taken after verdict, and it has been repeatedly decided by this Court, that such an exception, taken after verdict, is too late, and cannot be sustained.” State v. Suggs, 89 N. C., 531; Horah v. Knox, 87 N. C., 483.
There is no error. Let this be certified to the Superior Court of Iredell county, that the case may be proceeded with in conformity to this opinion, and the law of the land.
No error. Affirmed.