We entertain no doubt that the recusation of the special judge on the ground that his partner in the practice of law had prosecuted the defendant for the act charged in this indictment as a violation of a municipal ordinance was proper and legal, - and that the appointment by the clerk of a special judge was in all respects regular.
It is clear, too', we think, that a street of an incorporated town or city is a public road within the . language and intent of section 5354 of the Code (1896), and the sidewalks of such street, that part of it used by pedestrians, is as much a part of the road as a space between the sidewalks, that part used for the passage of vehicles and beasts of burden.
Under the statute it is no more essential to guilt that one charged with shooting across the road, should shoot entirely across it, from side line to side line, than it is that one charged with shooting along the road should shoot entirely.along it from end to end. Hence it is of no avail to the defendant in this case that his missile passed only across a part of the sidewalk of a street.
On the trial in this case the fact that defendant did fire a gun across a part of the sidewalk of a.public street in the city of Huntsville, the ball passing through a window of an adjacent building, was not only proved by disinterested witnesses but was admitted by the defendant himself. The only defense attempted was that the defendant did not suppose the gun was loaded, as he had seen it on the previous evening when it had an exploded *168shell so fastened in the barrel that he and others were at that time unable to extract it. Notwithstanding this supposition on his part he might still be guilty 'as charged if he was negligent in respect of ascertaining the condition of the gun at the time, he presented it and pulled the trigger. And this whole matter was properly, submitted to the j ury on the assumption that they might find that the defendant entertained the supposition in question. But even that was an - open question, for there was evidence tending to show that the gun was purposely discharged at and to mutilate a picture which was in the window. And this question, too, we assume was properly submitted to the jury. On this inquiry, it was entirely proper to show declarations of defendant as to his purpose to mutilate the picture, his reference to it. as that of a particular individual, then and now much in the public mind and exciting strong antagonisms- along with strong partisanship ; and as showing th'e purpose to mutilate, and hence the .purpose to shoot, it was competent, obviously, to show the fact of mutilation — that the bullet passed through the picture. So far no error was committed. And beyond this no testimony adduced bore at all on the question of the defendant’s guilt. There was other testimony received going to show that the bullet made a large hole through the picture and through the glass of the window, onto which the picture was posted or placed;. and that this was French plate glass. We may concede that this further testimony was irrelevant and that the court erred in allowing it.to go to the jury. But as this evidence had no bearing upon the question of the guilt or innocence of the defendant, but went merely in aggravation of the offense ; and as it manifestly had no effect in that direction upon the jury since they assessed the lowest punishment possible ■ under the statute, it is at once clear that the, error,complained of in this connection was without injury to the defendant; and it can'not, therefore, be availed of to reverse the judgment. — Code-of -1896, ■ § 4833. .
The judgment of the circuit court must be affirmed.
Affirmed.