This is an appeal from a death penalty for murder. While the appellant and Charlie Clemons were engaged in robbing Pat and Eliza Bingham, at their residence, about eleven o'clock at night, Pat called to Richard Priestly, who lived a short distance away, and who then came to the Bingham residence. When he arrived at the steps from the ground to the gallery of the residence, *Page 711 Clemons was on the gallery and the appellant on the inside of the house. The appellant, according to the undenied State's evidence, told Clemons to "kill the son-of-a-bitch" and both of them began to shoot. One bullet only struck Priestly. The appellant fired three shots through a door leading from the room he was in onto the gallery, and one in another direction which struck the floor of the room. An unchallenged confession of the appellant admits practically all the State proved, except that he told Clemons to kill Priestly, and states that the appellant did not shoot at Priestly, but shot only "to scare the man outside away". The appellant offered no evidence except that of an engineer who produced a diagram drawn by him to a scale of the Bingham residence from which it appears that no bullet from within the room of the residence from where the appellant was said by the Binghams to be standing when he was shooting could have struck a man standing at the foot of or on the gallery steps. The accuracy of this diagram was not challenged.
The appellant complains of the refusal of the court below (1) of his request for a view by the court and jury of the scene of the homicide, and (2) for an instruction charging the jury "that the testimony of an accomplice in a crime should be received and considered by the jury with great caution, suspicion and jealousy."
The granting of a request, under Section 2066, Code of 1930, for a view by the Court and jury of the place at which the crime, for which a defendant is being tried, was committed, rests in the discretion of the trial judge. The appellant's contention is that this discretion was here abused in that a view of the premises would have demonstrated to the jury that Priestly was not struck by a bullet from the appellant's pistol, which fact might *Page 712 have induced the jury not to impose the death penalty on him, but to fix his punishment at imprisonment for life. It is difficult to perceive from the evidence how a view of the premises could have given the jury any more definite information in this connection than did the engineer's diagram introduced in evidence, and when such is the case a view by the jury of the premises is unnecessary and should not be granted. National Box Co. v. Bradley, 171 Miss. 15, 26, 154 So. 724, 157 So. 91, 95 A.L.R. 1500.
Leaving out of view the particular language in which this refused instruction is couched, the granting of such an instruction "rests in the discretion of the presiding judge, and his refusal so to do is not assignable as error." Cheatham v. State, 67 Miss. 335, 7 So. 204, 206, 19 Am. St. Rep. 310; Wilson v. State, 71 Miss. 880, 16 So. 304; Brown v. State, 72 Miss. 990, 18 So. 431; Watkins v. State, 134 Miss. 211, 98 So. 537; Commonwealth v. Phelps, 192 Mass. 591, 78 N.E. 741; Carroll v. State (Tex. Cr. App.), 62 S.W. 1061; State v. Hier, 78 Vt. 488, 63 A. 877.
Affirmed; sentence to be executed on Thursday, the 11th day of July, 1940.