State v. Hunt

• Decision Date: 16 April 1901
• Citation: 128 N.C. 684,38 S.E. 473
• Court: North Carolina Supreme Court
• Parties: STATE . v. HUNT.

38 S.E. 473

128 N.C. 684

STATE .

v.HUNT.

Supreme Court of North Carolina.

April 16, 1901.

HOMICIDE) — PEREMPTORY CHALLENGES— MALICE, —DECLARATIONS—TRIAL —INSTRUCTIONS.

1. Though Code, § 1199, entitles an accused "on trial for his life" to 23 peremptory challenges, the court, on the trial of an indictment for murder, may properly refuse the accused more than 4 peremptory challenges, where the solicitor gave notice when the cause was reached, and again at the trial, that a capital verdict was not asked for, but only a verdict for murder in the second degree or manslaughter.

2. On a trial for murder in the second degree, accused's declaration that he intended to get some whisky, and go down to a party, and "raise some hell, " is competent to show malice, where deceased was one of the persons at the party.

3. The refusal of a special instruction is not error where the charge was more favorable to accused than the instruction asked.

4. An accused cannot complain of an instruction which is erroneous because more favorable to him than the law justified.

Appeal from superior court, Catawba county; Timberlake, Judge.

Raymond Hunt was convicted of manslaughter, and he appeals. Affirmed.

E. B. Cline and Self & Whitener, for appellant.

Brown Shepherd and T. M. Hufham, for the State.

CLARK, J. The defendant was indicted for murder in the usual form under the statute (Laws 1887, c. 58). When the case was reached for trial on Tuesday of court, the attorneys for the defendant being present and not objecting, the solicitor stated that no special venire was necessary, as he should only ask for a verdict of murder in the second degree or manslaughter, and no special venire was ordered. On Wednesday both sides announced their readiness for trial, and the trial commenced. The defendant offer ed to challenge more than four jurors peremptorily. The state objected. The court sustained the objection, stating at the time that the solicitor did not ask for a verdict for a capital felony, in which case only the defendant was entitled to more than four peremptory challenges. The defendant excepted to the refusal of the court to allow him to challenge the fifth peremptorily. The jury was sworn and impaneled. The solicitor read the bill of indictment, and stated to the jury that he should not ask for a verdict of murder in the first degree, but only for murder in the second degree or manslaughter; and the court, in both the opening and concluding parts of the charge, stated to the jury that they must not render a verdict for any higher offense than murder in the second degree. We do not see how the defendant has been prejudiced or deprived of his rights in any way. He was not exposed to trial for a capital felony before the petit jury. It is only when a person is "on trial for his life" (Code, § 1190) that he may challenge peremptorily 23 jurors, and the defendant was not on trial for his life. The solicitor gave notice beforehand, and again in beginning the trial, that a capital verdict was not asked for; and the court instructed the jury that they could not return a verdict for murder in the first degree, the defendant being on trial for a lesser offense. The act of 1893 (chapter 85) prescribes the same form of indictment for murder in the first degree and murder in the second degree, and this court has held in State v. Ewing, 127 N. C. 555, 37 S. E. 332, that the grand jury cannot indorse on such bill that it is a true bill for murder in the second degree, but must return it simply as "a true bill" or "not a true bill." But the statute does prescribe two distinct offenses, —murder in thefirst degree, which is punishable with death; and murder in the second degree, which Is not As the state cannot indicate that it intends to put the defendant on trial for the lesser of these offenses by indicating It in the form of the bill, or by the indorsement of the grand jury, the solicitor must be allowed to do so at the earliest...