#### STATE v. HARDAWAY BONE.

Where, in a capital case, a juror answered on the trial as to his competency before the Judge as trier, that he had formed and expressed an opinion that the prisoner was guilty, but that this opinion was founded on rumors, and that these rumors had not produced such an impression as to prevent him from listening to the testimony and giving the prisoner a fair trial, it was Held that the decision of the Court, that the juror was competent, was no ground for a venire de novo.

The prisoner has no right to postpone showing cause of challenge to a juror and have him stand aside until the panel is finished, this being entirely the privilege of the State.

This was an indictment for murder, tried before Heath, J., at the last Eall Term of Gaston Superior Court.

On the trial, one Pegrarn was called as a juror and challenged for cause by the prisoner, and it was agreed that the Judge should act as trier, not only in this instance, but throughout the trial. In answer to questions propounded to him as to his competency, being duly sworn on that issue, he said he ■had formed and expressed the opinion that the prisoner was guilty; that this opinion was formed upon rumors which he had heard in the neighborhood four days after the affair took place; but he said further, to interrogatories by his Honor, that these rumors had not produced such an impression on his mind that he could not listen to the testimony and give the prisoner a fair trial. The juror was decided to be competent and tendered to the defendant. The defendant’s counsel excepted. , »

One Rutledge was drawn, and having answered that he had formed and expressed an opinion, from rumor, that the defendant was guilty, the counsel for the defendant, asked that he might stand aside until the panel was gone through with. The Court declined to permit this, saying, “ this was the States’ privilege and not that of the defendant.” The juror was, on further examination, found to be indifferent* and tendered. Defendant’s counsel again excepted.

No other point being specially noticed, in the opinion of *122tlie Court, it is not deemed necessary to set out tbe details of tiie case, which are very fully stated in the record sent to this Court. A view of the leading features of the case, however, is confained in the concluding observations of the opinion.

The defendant was found guilty of murder, and judgment being pronounced, he appealed to this Court.

Attorney General, for the State.

No counsel appeared for the defendant in this Court.

Manly, J.

The exceptions presented in the elaborate case, reported to this Court, have been examined, and we find no error.

Those exceptions, which arose upon the selection of the jury, are clearly untenable, according to recent and well considered cases in our own Court. The leading case is, the State v. Benton, reported in 2 Dev. and Bat. Rep. 196, and this has been followed by the subsequent cases of Oraton, Ellington and others, reported in 6th and 7th Iredell ; in all of which, the rights of the State and of the prisoner, respectively, in challenges to jurors, are discussed and .defined.

One point is made in the case, under consideration, in connection with this subject, which it may be as well to notice specially, as it is new, and that is, whether th & prisoner has a right to postpone showing his cause of challenge to a juror until the panel is gone through. Such a right was not demanded by the apparent necessity out of which grew the practice, as exercised by the State, and has never been used or claimed in this State or elsewhere, as far as our information extends.

As a privilege of the prosecution, it is known to have sprung up in England, at the time when the right of peremptory challenge was entirely taken away from the Crown by 33 Edward 1. In that state of the law, the Crown, having no power to set aside a juror, objectionable, but not legally disqualified, was permitted to put him aside until the end of the panel, that it might be seen whether the prisoner could not *123get a jury of his choice from persons unobjectionable to the Crown.

This right, after our political independence, was transferred to the State, and has been continually exercised by it since. There is no warrant for such a right or privilege in the prisoner, and his Honor below was, therefore, right in declaring it to be a privilege of the State.

The cpiestions made as to the admissibility of testimony are all governed by such familiar principles, so often repeated in this Court, we deem it unnecessary to notice them in detail. No one of them is tenable.

The instructions asked for, seem to us-to be severally predicated on assumptions without proof to support them. There is no proof of a mutal combat or affray. It is a case in which the deceased is assailed with a dangerous stick ; — is severely beaten — acts only in defense, but unable to defend himself, calls for assistance, and is then, before assistance could be rendered, stabbed to death with a knife.

This is the most favorable view for the prisoner which can be taken of the transaction, and upon this, it is a clear case of murder. Clothe it in the details of the evidence, and it is a very bad case.

Ve have examined the whole record in the case and find no error.

This must be certified to the Superior Court for the county of Gaston, to the end that it may proceed to j udgment and execution upon the prisoner.

Per Curiam,

Judgment affirmed.