David Hamilton was indicted for. assault with intent to murder John Hamilton, and was found guilty. The evidence showed that they were attending a dance at the house of Frank Howell, and that Frank Howell and the defendant had a fight, in which the defendant was beaten. After the difficulty Frank Howell went into a back room, and was standing talking to John Hamilton, when the defendant shot from the outside, through a window, striking both Frank Howell and John Hamilton. It was shown that the defendant and John Hamilton were cousins and were good friends, both before and after the shooting. The defendant, in his statement at the trial, said: “I went to the window, and I saw him [meaning Frank Howell] and John Hamilton standing-in the back room; he had a gun and John had a pistol, and T *117thought they were fixing to get me, and I thought it was best to get them first.” The defendant excepts to the refusal of his motion for a new trial, which was based upon the usual general grounds, and upon exceptions to the following excerpts from the charge of the court:
(1) "I charge you in connection with that, if it was his intention to shoot at some one else, and, instead of shooting that person, he shot the injured person, as charged in this indictment, then you would take into consideration the facts and circumstances in determining the question of whether or not he would have been guilty of the offense of murder if he had killed that other person, or the person against whom he was intending to inflict an injury, if you find he was intending to inflict any injury.” This is alleged to be error- for the reason that the defendant was not charged with shooting any person other than John Hamilton, and that an intent to shoot another would not make him guilty of the offense charged.
(2) "I charge you in this case, if you believe that this offense grew out of an altercation between Frank Howell and the defendant, and that it arose at the residence or home of Frank Howell, that Frank Howell would have a right to say who his visitors at his house were, and when he got tired of a visitor he had a right to take him away; if he refused to go away, then he would have a right to eject him from the house, and he would have a right to use just such force as was necessary and required to eject him from it; that it was his house, and he had a right to say who should remain there and who should not, and when he asked the man to leave, if you believe he asked him to leave, it was his duty to leave. You will take all these matters into consideration in determining the questions in this case.” This is alleged to be error for the reasons that it is prejudicial to the defendant, and that the court failed to give in connection therewith the defendant’s contention that he was a peaceable visitor at Frank Howell’s house, and that Frank Howell was not justified in his conduct towards the defendant.
(3) "If you believe he really intended to shoot at Frank Howell, yop. will say whether he then shot at Frank Howell under circumstances of self-defense, or under circumstances of justification. If it was a case of self-defense and justification as to Frank *118Howell, and he did not intend to shoot this injured party, and he shot him through mistake, then it would be reckoned and the case would turn upon the fact, as to what his offense would have been if Frank Howell had been the injured party, and the indictment had charged the offense as against Frank Howell.” This is alleged to be error for the reason that the defendant was charged with trying to kill John Hamilton, and any intent to kill another was immaterial.
1. We do not think there was error in the first portion of the charge excepted to, when it is taken in connection with the preceding part of the charge. The court there charged the jury that ‘The allegation of intent in this indictment is a material allegation, and, unless you believe from the evidence in the case that it was the intention of the defendant, at the time he made the assault upon the injured party, to kill and murder him, you would not be authorized to find the defendant guilty.” It seems that instead of being harmful to the defendant, this part of the charge was really in his favor.
2. While the instruction as to the right of Frank Howell to say who should remain in his house was perhaps unnecessary, and might well have been omitted, we do not think it was sufficiently harmful to the defendant to require the granting of a new trial.
3. We do not think the third portion of the charge objected to was erroneous when taken in connection with the rest of the charge as a whole.
4. The defendant in his statement having admitted that at the time he shot he intended to “get” both Frank Howell and John Hamilton, we will not disturb the finding of the jury on the general grounds of the motion.
Judgment affirmed.
Russell, O. J., dissents.