It having been shown that the killing was done at the defendant's home about 3 or 4 o'clock in the afternoon, the fact that deceased had gone across the river that morning with witness and gotten some whisky, or as to when and where they got whisky before going to defendant's house, was immaterial and irrelevant to any issue presented, and therefore the objections of the state were properly sustained.
The exclusion of the evidence of the drunken condition of deceased on a former occasion, when it was testified he made a threat against the life of defendant, was without injury to the defendant, and, if error, was to his benefit.
Charges 1A, 2A, 4, 5A, and 6A were covered by the court's general charge, or the charges given at the request of the defendant. Charge 4A is involved, and charge 8 is bad, because it fails to hypothesize that the appearances were such as to impress the mind of a reasonable man with the necessity to take life. The motion for a new trial was properly overruled. There is no pretense that the deceased had a gun at or near at hand, nor is it contended that he had a gun in his hand at the time he was shot by the defendant. Defendant contends and testified that deceased reached towards the corner of the house and said he had a gun there. The defendant claims to have acted on appearances and fired. He had a right to act on appearances, and the question of whether the deceased was seen going in the direction of defendant's house earlier in the afternoon was not material. The court by its charges gave the defendant everything he was entitled to by reason of this contention. Hence the fact that it was discovered after the trial that two witnesses would have testified that a short time before the killing deceased was seen going in the direction of defendant's house is not sufficient to authorize the granting of a new trial. The undiscovered evidence further tending to impeach the testimony of a state's witness who had already been impeached and contradicted by several witnesses is not sufficient to warrant the granting of a new trial.
The fact that the jury trying the case, while in the courtyard and with the bailiff, did not remain in a compact mass, but at one time five of them were about 25 feet from the others, is not such misconduct of the jury as will warrant setting aside the verdict.
There is no error in the record, and the judgment is affirmed.
Affirmed.