Appellant was convicted of murder in the second degree, and his punishment fixed at imprisonment for 25 years.
The first question considerеd in brief of appellant’s counsel relates to the action of the court in overruling the motion to quash the venire, and grant a continuance upon the ground that the service of the venire was insufficient. The trial was had on May 27, 1924, and service of the venirе was on the day previous. The mere fact that the venire could and doubtless should have been served a few days earlier, does not appear to have worked any prejudice to defendant, and presents no sufficient ground for reversal, as wаs held in Scott v. State,
Refused charge No. 1 is argumentative. Moreover, the substance of this charge is embraced in oral chаrge of the court, and charge No. 8 given for the defendant. Charge 29, refused to the defendant, is substantially covered in given chargеs 1 and 2, and, also, the oral charge.
Refused charge 36 exacts too high a degree of proof, and its refusal was not errоr. 1 Mayfield Dig. 176. The court in the oral charge fully and fairly instructed the jury upon the question of credibility of a witness on account of bias, рrejudice or ill will. Refused charge 31 was sufficiently covered by the oral charge.
The deceased, a negro woman, was shot through the stomach with a pistol in the hands of the defendant, and died as a result thereof. The defense insisted the shooting was accidental, while the state offered proof tending to show the contrary. At the time the shot was fired, deceased was sitting in a chair in thе house with her baby in her lap. There was no error in permitting the state’s witness to state that the baby’s leg and clothes were powdеr burned; all of this was admissible as a part of the res gestae. That the baby of deceased was in her lap at the time was proven without conflict, and admitted by defendant. Very clearly, no prejudicial error was committed in permitting the witness, Lucinda Cary, the оlder child of deceased, to answer that she had a “baby sister.”
John Cary, husband of deceased, testified to a dying declaratiоn, sufficient predicate having been made by his evidence for the admission of the statement, that she (deceased) told him “that she was going to die.” Defendant moved to exclude the entire answer of this witness embracing the dying declaration. In argument particulаr stress is laid upon the last sentence in the answer, “and she said the reason he shot, because she wouldn’t have him,” as objectionable, as not giving the language of deceased, but only a conclusion or opinion. Whether subject to this criticism need not be considered, as no specific objection was made thereto, but only to the whole answer, a large portion of which was very clearly not subject to the criticism in this respect. Clearly, no reversible error here appears.
The state оffered proof of a voluntary statement made by defendant, in which he insisted it “came up about some whisky, * * * had some little argument аbout some whisky,” to use the language of the witness. There was therefore no error in permitting John Cary, the husband, to testify that he had no whisky thеre-at the house where he and deceased lived, apd where the shooting occurred.
Nor is reversible error shown in the еxception to a portion of the argument of the solicitor to the jury. We construe these statements as appeаls for the death penalty, and not beyond the limitations fixed by the decisions. McNeill v. State,
During the deliberations of the jury on defendant’s case, the bailiff having the jury in charge went into the jury room; either having been called into the room for some purpose by onе of the number, or going to see if his services were needed. The time he remained in the room varies according to *351 the reсollection of the witnesses from one to five minutes. The evidence is without conflict that the merits of the case were not in аny way discussed, but the bailiff was asked by some one or more of,the jurors whether or not “second degree murder would carry 25 years.” Sоme of the witnesses state that the bailiff answered some questions as to the number of years fixed as punishment for manslaughter in the first degree, and murder in the second.
It appears, however, without dispute, that at the time of this conversation the jury had already agrеed upon the verdict of guilt in the second degree murder, and 25 years’ imprisonment, but were confused as to whether murder in the secоnd degree “would carry 25 years.” In fact, the verdict had been written out thus far, “We, the jury, find the defendant guilty of murder in the second degree, as charged in the indictment, and fix the penalty at -,” leaving the rest blank, but the number of years had also been agreed upon as 25. The extent of the conversation was only to confirm the first impression of the jurors that, as to the form of the verdict, second degree murder “would carry 25 years.”
While all of this was very irregular and improper, and to be condemned, yet, when it affirmatively appeаrs the irregularity was without injury or prejudicial effect upon the defendant’s cause, a reversal cannot be rested upon thе action of the court in overruling the motion for a new trial upon this ground.
In Leith v. State,
The cases of Weaver v. State,
We have here considered the several questions which were deemed by counsel for appellant sufficiently important to discuss in brief. Mindful of our duty, howеver, in cases of this character, we have also considered the few remaining matters appearing in the record, but find nothing therein calling for a reversal, or of sufficient moment as to demand discussion.
No reversible error appearing in the record, the judgment of conviction must be affirmed.
Affirmed.