Tlie opinion of the Court was delivered by
Todd, J.The defendant was tried and convicted under an in formation charging:
“That one Joseph Minau, unlawfully, feloniously and of his malice aforethought, did shoot and strike with a dangerous weapon to-wit: ■a shot-gun, then and there loaded with divers leaden balls, in and upon the dwelling-house of one Adam Broussard, with intent in so ■doing to kill and murder one Lucie Catallan, the wife of said Broussard, he, the said Adam Broussard, his wife and his children, being then and there peaceably and lawfully in said dwelling-house.
He was sentenced to seven years imprisonment at hard labor and .appeals.
1. The defendant moved for a new trial substantially on the ground that, after the case was closed and the jury had retired to deliberate ■on their verdict, they returned into court for further instructions, which were given:
That these instructions consisted of additional evidence, which was imparted to them by the judge, and which had not been adduced on the trial.
We gather from the bill of exceptions, that the jury returned into court and asked the judge to inform them whether the accused had been in custody or out on bail since the charge was preferred against Mm. Tlie judge asked the counsel for the accused whether he had any objection to his giving the jury information, touching the matter inquired about, and upon being told by the counsel that there was no objection, gave the desired information, but, at the same time, stated to the jury that this was no concern of theirs, and. that the only evi*528dence they1 could consider was that adduced on the trial. The judge states in the bill that if objection bad been made by tbe counsel, he would not have given the information to the jury.
We think, under this state of facts, the overruling of the motion gave no cause of complaint.
2. There was a motion in arrest, on the ground of duplicity in the information.
Tlie duplicity was alleged to consist in charging an offense provided by Act No. 8 of 1870 and an offeuse declared by Sec. 792, R. S., in one and the same count.
Tbe latter section referred to, reads: “Whoever shall assault another by wilfully shooting at him or with intent to commit murder,” etc.
It is very evident from an inspection of the information, which we have literally quoted above—that it contains no charge against tbe accused of an assault “by wilfully shooting at,” or of an assault-“•with intent to commit murder.” The real charge, it is obvious, is that declared by tbe act of 1870 against shooting at a bouse occupied by persons lawfully therein; and that tbe words with reference to tbe intent to murder the person named in the information, -whilst they are irregular, may be properly treated as surplusage as was held by tbe trial judge. Include them and they do-not make out another offense, eliminate them, and they have the information perfect with respect to the offense above named, provided by tbe Act of 1870, which alone purports to have been tried.
Judgment affirmed.