Woulard v. State

Anderson, J.,

delivered the opinion of the court.

Appellant, Arnold Woulard, was indicted and convicted in the circuit court of Perry county of the crime of murder, and sentenced to the- penitentiary for life, from which judgment he appeals.

In none of the instructions given for the state were the jury informed that the evidence should show the guilt of appellant beyond a reasonable doubt. That is assigned as reversible error. They were instructed that if they believed from the evidence appellant was guilty they should so find. There was nothing in any of the charges for the state as to the weight of evidence necessary to justify a verdict of guilty. In several instructions for the appellant, however, the jury were charged that they could not find appellant guilty unless his guilt was shown by the evidence to a moral certainty and beyond all reasonable doubt. The instructions for the state and for appellant should be read together as one instruction and interpreted as a whole. $o read and considered the instructions for the state and appellant are entirely consistent with each other. The court said to the jury, in the instructions for the state, that if they believed from the evidence that defendant was guilty they should so find. And then, in the instructions for appellant, they were told that under the law their belief of guilt from the evidence had to be so strong as to exclude every reasonable doubt. There was no harm done appellant. The jury were not misled. It was easy for the instructions given for the state and the appellant to be reconciled by the ordinary mind.

There was no- error in the action of the court in refusing appellant’s application, to either continue the case or delay its trial to another day on account of the absence of the witness Dennis, by whom he expected to prove that deceased stated to the witness that the reason he did not shoot appellant at the time of the difficulty was that his gun was not loaded. In the application for a continuance or delay of the trial, in order to procure the presence of this witness, it was not set out when the deceased said he would have shot if his gun had been loaded, whether before appellant' shot him or afterwards. As a justification of the homicide appellant relied on self-defense. He testified that he shot the deceased in order to prevent the latter from taking his life or doing him great bodily harm; that at the time he shot deceased the latter had his gun trying to shoot him. It was most pertinent therefore as to whether the deceased meant in his statement to the witness that he would have shot appellant as aggressor or in self-defense. We hold that what appellant desired to prove by the absent witness was immaterial. It was an admission by the deceased, entirely consistent with the evidence for the state, which showed that appellant was the aggressor in- the difficulty, and not the deceased.

A short while, perhaps from ten to fifteen minutes, before the homicide the deceased had fired a shot with his shotgun near appellant’s home. Some of the shot from this load struck appellant’s wife and child, making very slight wounds. The state introduced over appellant’s objection the alleged dying declaration of deceased, to the effect that such shooting by him was accidental and that he had afterwards gone to appellant’s home to offer his services when appellant shot and killed deceased. Dr. 'Pugh, who. attended the deceased after he was shot testified to that declaration of the deceased, and further, that the deceased was mortally wounded, and before making such statement in his presence realized that he was mortaLly wounded and as evidence of that fact said: “I am dying, doctor, please let me go to the hospital.” We are of opinion that the alleged dying declarations met' the requirements of the law. Dr. Pugh’s evidence, we think showed that the declaration of deceased was ^ade under the sanctity of impending death.

Appellant was charged in the indictment with the murder of Isadore G-rug;. Some of the witnesses referred to deceased by that name, while others referred to him as Cidero Cruize. Before going into the trial appellant objected to “the indictment now presented to the court as being a certified copy of an indictment purporting to come from the secret records of indictments, and charges that he unlawfully and feloniously killed oiie Isadore Grug, a human being, and at a former term of this court defendant was put to trial for the murder of one Cidero Cruize, a different person and a different charge.” This objection was overruled and the action of the court in so doing is assigned as error. The record shows that the deceased was known as well by one of those names as the other. That being true the indictment could have alleged either name, lé B. G. L-., p. 182, section 28. And furthermore, if, during the progress of the trial, it develops from the evidence that the deceased is given the wrong name in the indictment, under section 1508, Code of 1906 (section 1266, Hemingway’s Code), this is a mere amendment defect. Smith v. State, 103 Miss. 356, 60 So. 330. And a failure to amend, tlie indictment under such, circumstances is not reversible error unless harm results therefrom. In the ease at bar no harm whatever is shown to have been done appellant by the fact that the deceased was known by two different names.

The appellant argues that his request for a directed verdict should have been granted. We are unable to see upon what that contention is based, for the evidence on behalf of the state is very strong and convincing that at the time appellant shot and mortally wounded the deceased the latter was making no demonstration whatever to harm appellant.

We find no merit in the other assignments of errors. They are not of sufficient seriousness to call for a discussion by the court.

Affirmed.