#### THE STATE *vs.*WILLIAM S. COCKMAN.

If an indictment for murder charges that A Irilkd the cbceased, 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 in concert, and that A1 was present, aiding and assisting, the jury should be instructed to-find A guilty.of murder.

If a challenge by the prisoner for good cause bo disallowed, ard the juror be challenged peremptorily by the prisoner, and the pannel is compie-ted, the prisoner having -challenged péumptonij a smaller number than twenty-three, this is no cause for a *venire de novo.*■

A juror, challenged by the prisoner because he had focmcd aud espreáecd an opinion that the prisoner was guilty, says on his examination by the Court, that he has formed apd expressed an opinion to that effect, from rumor, bat that he thinks he can give an impartial verdict on She trial, is adjudged by th‘. Com l to be indifforent between the parties, and i* ’ tendered to the prisoner; this is no error ol which the prisoner ran complain.

The case of the State *vs.*Bant.' n, 2 D*v, and Bat, 196, cited and approved.

This was an 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 *G.*Howard, was killed by the prisoner, and that others, to the jurors unknown, were present, aiding and abetting him in the aet of killing. . -

In forming the jury,, the prisoner challenged . one Donald McDonald, and assigned for shuse 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 met before expressed it; that his opinion .was formed on rumor alone, that he had great *96confidence in the trut\ of the rumors be bad beard, and "that he was afraid they might have some influence on'hi» judgment.” . Upon his further" examination he said that <f 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 examination1 of the juror, and from his whole demeanor, that he was indifferent, disalloweti the challenge, and directed him to be tendered, when he was challenged peremptorilj by th© prisoner. Another juror, named Brya'nt Dowd, was challenged by the prisoner for the same cause. He stated, on oath, that “he had formed-and expressed the opinion that the prisoner was guilty, and that he had formed it on in-■fermatioa derived from a person who, not long after th© 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, uninfluenced by anything h© had heard. He was directed to be tendered, and the pris-i oner challenged him peremptorily.”

When thé jury was completed, the prisoner had, made", •twenty-one peremptory challenges.

On "the trial, witnesses testified, that1 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 eounty, 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.-Heward, one of the soldiers, was killed. Two vollies. *97were fired in quick succession, from the woods through ■which the road ran. In the first volley eight or'ten guns 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 running away. He saw the prisoner sitting at the foot of a.tree about fifteen steps from the road, in the direction from which the deceased was shot. The prisoner had a gun in his hand, which was empty, and had, apparently, just been discharged. There were 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 persons 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 give 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 théy might . convict the prisoner», although the discharge of his gun ma^'not have given the wound of which the depeased died: and even though the prisoner may not have discharged his gun at all; for that in combinations ©f the kind alledged, the' mortal wound, though given by one *98
      *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 thereon, 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 peremptory challenges.

The challenges of this kind had not ¿teen exhausted at the completion of the jury, (only 21 having been made) so.that no 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 the record. The subject of challenges to jurors, underwent in this Court *so fall*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 be 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 fe'rict conformity to law.

*99Theso-principles are oí common learning. 1 Hale, 462.

The Court was requested to charge the jury, that there-was ho evidence of a combination. This the Court declined — and, as we think, properly declined. There was. evidence, and abundant evidence, as we {.Link.

We have examined the whole record in this case, and do not find any error. ‘ Let this opinion be certified, to the end that the Court below may proceed according t« law. .