State v. Murph

• Decision Date: 30 June 1863
• Citation: State v. Murph, 60 N.C. 129 (N.C. 1863)
• Court: North Carolina Supreme Court
• Parties: STATE v. JACOB W. MURPH.

60 N.C. 129

STATE

v.JACOB W. MURPH.

Supreme Court of North Carolina.

June Term, 1863.

It is no ground for a challenge to the array, in a capital case, that it does not appear from an order for a special venire facias, that it was made in the case of the prisoner. It is sufficient if it appear that it was made at the term at which the trial was had.

A challenge tn the array of jurors is generally founded on a charge of partiality, or some default in the sheriff or other officer, summoning them.

Whether, where the manner of a homicide, charged in a bill of indictment, is by cutting the throat of the deceased with a knife, and the proof is, that it was done by blows inflicted on the head with a gun, the variance is material-- quere.

The Court is not bound to give special instructions to the jury, at the request of counsel, on a hypothetical case.

THIS was an indictment for MURDER, tried before KERR, J., at the Fall Term, 1862, of Rowan Superior Court.

The defendant was indicted for the killing of one John Cope, by cutting his throat with a knife, and in the same bill, one Wilson McGrady was indicted for aiding and assisting in the same homicide. The case was removed to Rowan from the county of Cabarrus.

Upon the trial, one Mary Cope, wife of the deceased, testified, that on Sunday, 8th December, 1861, Jacob Murph came to the house of the other defendant, McGrady, about eight o'clock in the morning; that shortly thereafter Cope, the deceased, came to the same place in a buggy, and she went out to meet him, and found that he had put his horse in the stable; he and McGrady were brothers-in-law; that in a short time Cope concluded that he would leave the place, and went to the stable to get his horse for that purpose, and witness went with him, but found the horse sick and unfit to be used; that they then returned to the house and found McGrady standing near the corner of the house; they (witness and her husband) entered the building and were standing near the door when Murph came up with a gun under his arm, pointing towards witness and deceased; that Murph said, “good evening;” to which Cope said, ““good evening G--d damn you,” “I will kill you;” that Cope then turned towards the prisoner and seized the gun and succeeded in wresting it from the prisoner's hands; that the prisoner stepped back a little and Cope fired the gun at him; that the witness then stepped back a little and took a seat in the house where she could not see the parties; that she heard the noise of a scuffle between them, and heard the sound of heavy blows, and heard the deceased say, “oh don't.” She also heard the prisoner say, “I have cut his damn'd throat;” that a few minutes afterwards, she heard him say, “we will take him and put him in the smokehouse, and then we will carry him to Beaty's old field;” that she heard chopping at the smoke-house and saw McGrady coming from towards the stable, and on his going to the smoke-house, Murph again said, “we will put him into the smoke-house until night, and then take him to Beaty's old field;” this was about two o'clock in the evening; she got supper about sundown, of which the prisoner and McGrady partook, and then the former left the house and went off, but before he went, he told witness that if any one came there and enquired for him, to say that he had not been there since Thursday, and said further, “if you tell any body what has happened, we will kill you;” that the prisoner did not return to McGrady's until 12 or 1 o'clock that night; that as soon as he came back he said to McGrady, “it is time to go;” that she, in a short time, heard the tramping of a horse in the yard and the noise of a buggy, and then Murph and McGrady went away and did not return till about 3 o'clock, and that they then made up a fire and sat until about day, when Murph went off again; the gun, to which witness referred, was the property of the prisoner, which he carried away with him when he left on Monday morning; it was a rifle. This witness also testified, that on Sunday before the killing took place, Cope told her that he intended to kill Murph wherever he met him, and that she had told Murph of this threat. The witness further stated, that Murph, the prisoner, was in the habit of having his washing done at McGrady's, and frequently left his gun there.

Dr. Beatty testified, that he found the body of the deceased in his old field on Tuesday, 10th December, 1861, and near to where the body was, he found a horse standing tied among the pines; that a buggy was likewise there, having hair on it; that the throat of the deceased was cut from ear to ear, and there were very severe wounds on the left side of the head, evidently inflicted with a heavy iron instrument. He also stated, that the wounds on the head were, in his opinion, of a character to produce instant death, in a great majority of cases; thought it possible for life to remain after the infliction of such wounds, but not probable.

Nathaniel Johnson, another witness for the State, said, that on Monday, after the killing, he went to the house of McGrady, and there saw signs of blood and brains near the house, and saw where chips and dirt had been scraped away near the house door.

Col. Coleman was examined by the State; he stated that he went to the house of McGrady on Wednesday after the homicide and saw signs of the scuffle or conflict near the door and between the house and the smoke-house; that he saw signs of blood, and saw where the earth had been scraped and the surface removed.

George L. Gibson, another witness for the State, testified, that he was commandant of a military company in Cabarrus, which the prisoner had joined before he left the county; that he went to Raleigh after the prisoner, on learning that he was there, and had been put under arrest by Col. Avery; that he found the prisoner in Raleigh, and having authority to do so, he brought him back to Cabarrus to answer for the killing of Cope; that shortly after taking Murph into his cnstody, he told him he might as well tell all about it, for he (the witness) could do him neither good nor harm; that the prisoner then said, he did kill Cope, and did it in self-defense; that he went to the house of McGrady on Sunday and found Cope there; that he spoke to him, (Cope,) when he replied, “damn you, I have a great mind to kill you;” that Cope then came towards him and they got into a fight; that he struck Cope on the head with a gun and knocked him down, and struck him two or three blows afterwards, and thought he was dead, but on hearing him make a noise, he took a knife, which he found sticking in the logs of the smokehouse, and cut his throat. Witness further testified, that Murph further stated, that Cope blamed him for preventing his...