* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 844, n. 44; p. 917, n. 67. The appellant, Robert Smith, was convicted in the circuit court of Leflore county on a charge of murder, and, *Page 441 from a sentence of life imprisonment in the state penitentiary, he prosecutes this appeal.
The testimony offered on behalf of the state, if believed, makes out a clear case of murder, while there was testimony on behalf of the appellant from which the jury would have been warranted in finding that he was acting in self-defense at the time he fired the fatal shot. The cause was submitted to the jury under elaborate instructions which accurately stated the law applicable to the facts in evidence, and no complaint is made of the instructions or as to the sufficiency of the evidence to support the verdict.
The appellant argues but three assignments of error. The first one is based upon certain conduct and language of the county prosecuting attorney in the presence and hearing of the jury. In each instance, however, the objection of the appellant was sustained, and the court instructed the jury to disregard the objectionable remark of the attorney, and there is nothing in this assignment which presents reversible error.
The next assignment is based upon the admission of a conversation between the deceased and his brother just a few moments after the shooting. The record fails to disclose any such conversation that could have, in any way, prejudiced the rights of the defendant.
The last assignment of error is based upon the refusal of the court to permit a certain witness for the defendant to testify in contradiction of the testimony of one of the state witnesses. The record discloses that the rule was invoked by the state at the beginning of the trial and all the witnesses were excluded from the courtroom. Upon the statement of counsel for the defendant that this witness would be used only as a character witness, counsel for the state agreed that he might remain in the courtroom. The witness was present in the court-room during the entire progress of the trial, sitting beside counsel, and assisting and advising in the defense of the defendant. *Page 442 After he had testified as a character witness, he offered to testify that the testimony of one of the state witnesses was materially different from that given by him at the preliminary trial in the justice court. An objection was interposed to this testimony on the ground that the rule had been waived as to this witness upon the distinct understanding that he would be used only as a character witness, and this objection was sustained.
Where the witnesses have been excluded from the courtroom at the instance of either party, it is in the discretion of the trial judge as to whether or not he will permit a witness who disregarded the rule to testify, and, unless there has been a manifest abuse of this discretion, a refusal to permit such a witness to testify is not reversible error. In the case at bar the proposed testimony of the witness who was excluded was merely cumulative, and we do not think there was any abuse of discretion in refusing to permit the testimony.
The judgment of the court below will therefore be affirmed.
Affirmed.