(after stating the facts). 1. Appellant contends that the strongest force of the testimony on behalf of the State only tends to show that appellant was guilty of manslaughter, and that therefore the court erred in giving instruction No. 4. (Kirby’s Digest, §.1765.)
In Allison v. State, 74 Ark. 444, we said: “The question of whether it is proper to submit to the jury the question of the defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense.”
Under the testimony in this case on behalf of the State, the jury would have been warranted in finding the defendant guilty of at least murder in the second degree. The court therefore did not err in submitting to the jury the issue of appellant’s guilt or innocence of the crime of murder in the second degree. One of the witnesses testified that appellant shot Barr while the latter had his right hand on the shoulder of his brother and his left hand hanging down by his side, the same not being in Ms pocket, and that Barr was making no effort with either hand. TMs testimony was sufficient, if believed by the jury, to have warranted the jury in returning a verdict of at least murder in the second degree, and therefore there was no error in the giving of instruction No. 4 See Allison v. State, supra. Moreover, the instruction, even if improper, was not prejudicial because the verdict of the jury was for the lowest grade of homicide included in the indictment.
The court gave an instruction on reasonable doubt which fully covered the modification asked by appellant, and it was therefore not error to refuse this modification. See Petty v. State, 76 Ark. 515-517.
2. The appellant requested the court to give a correct instruction on involuntary manslaughter, but did not present what he considered a correct instruction. He can not complain therefore that the court did not grant Ms request. The reading of the statute defining voluntary and involuntary manslaughter without a more specific request of appellant, setting forth his prayers for instruction, was sufficient. Scoggin v. State, 109 Ark. 510.
The court, in its instructions 8 and 9, fully covered the matter presented by appellant’s prayer as to the presumption of innocence, and there was therefore no error in refusing such prayer.
Where a witness at the trial gives different testimony from that testified by him before the grand jury, the prosecuting attorney, being surprised by such testimony, may read or have the witness read, Ms testimony taken before the grand jury, and may question Mm concerning the correctness thereof. Derrick v. State, 92 Ark. 237-239. See also, Davidson v. State, 108 Ark. 191.
3. The separation of the. juror from his fellows wMle the trial was temporarily suspended during the thunder storm is not shown to have been prejudicial to the rights of the appellant. This separation took place before the court had exercised its discretion to keep the jurors together. At the time the juror separated himself from the other jurors, the court had not concluded to keep them together, and had not at that time placed them in charge of the bailiff with directions to keep them together with specific instructions not to allow them to separate. The record shows that at the time the juror separated himself from his fellows he was under no instructions of the court not to do so, and therefore violated no instructions of the court in so doing. No testimony was offered to show that the juror, while absent from his fellows, Avas guilty of any conduct prejudicial to appellant.
It is Avithin the discretion of the court to allow the jurors to separate or to keep them together, (Kirby’s Digest, § 2390), and as the court had not exercised its discretion to keep them together at the time the conduct of the juror here complained of occurred, the burden was upon the defendant to show that the juror was. exposed to improper influences. See Beeves v. State, 84 Ark. 572.
The record is free from errors prejudicial to appellant, and the judgment must therefore be affirmed.