The appellant, together with his father and his four brothers, was jointly indicted and jointly tried for the offense of murder in the first degree. There was a verdict of not guilty in favor of all the defendants, except appellant, Charlie Lundy. He was convicted by the jury of murder in the second degree, and his punishment was fixed at 10 years’ imprisonment in the penitentiary.
On this appeal it appears that the only questions insisted upon as error are the rulings of the court upon the evidence. Two special written charges were also refused by the court, but as these charges related solely to Pete Lundy and Joe Lundy, both of whom were acquitted by the verdict of the jury, the court’s ruling in this connection need not be considered. The same is true with reference to several rulings of the court upon evidence which related solely to others of the defendants who were acquitted by the verdict of the jury, and while there was no effort upon the part of any of the defendants to confine the evidence to such of them only to whom it had reference, where it clearly appears that the rulings complained of related in no ’way or manner to appellant, or did not or could not affect his substantial rights, it is not deemed necessary to consider these questions upon this appeal.
It appears from the evidence that the deceased, one John Mitchell, a brother-in-law of defendant, was last seen alive on Sunday night, August 3, 1919, and at that time he was seen leaving Elorala in company only with the defendant, Charlie Lundy, and deceased stated that he was going to the home of defendant to spend the night. The murdered body of deceased was not found until the afternoon of the following Friday, and it was then discovered by some passers-by, who were attracted to the body by buzzards. The body was badly decomposed when found, and was also mutilated by the feasting of the buzzards thereon. It was the theory of the state that Mitchell had met his death on Sunday night, and that it was caused by his having been shot with a gun loaded with buckshot. The evidence is without conflict that the deceased and his wife, the sister of defendant, had separated and were not living together at the time of the homicide.
“We found a hole through the top shirt and undershirt, the eighth rib was shot in two, and it was. shot in two where it joined the breast bone on the right side, and one shot went across the left edge of the breast bone, about on a level of the eighth rib, and one shot was up the breast bone about an inch or three quarters above the main lead — the main hole. We also found six buckshot in the shirt; they were flattened evidently against the bone. The ribs were all intact, except the eighth rib, and it was shot in two at the junction of the breast bone. The place was about 1y2 inches over that place other shot was burned. You could tell it had been shot and burned from powder, and in his judgment the body had f>een lying in that condition for four, five, or six days,” etc.
Under the well-recognized rules of evidence-this witness was properly allowed to state his opinion on this material question as to the cause of the death of Mitchell. Null v. State,
*456 The error, if any, in admitting the introduction of the photograph of deceased would not be sufficient to effect a reversal, for by no sort of reasoning does it appear that this ruling of the court injuriously affected the substantial rights of the defendant.
Other rulings of the court to which exceptions were reserved have been carefully examined. They are in our opinion free from error, and as the record is also free from error, it follows that the judgment of the circuit court must be affirmed.
Affirmed.