1. Charge of Court, How Construed. — A charge of a court should be construed as a whole; and where no bill of exceptions has been reserved to the charge, an error in a preceding paragraph, which is cured by a subsequent paragraph, so as to entirely eradicate or render it harmless, will constitute no ground of complaint, much less reversible error.
2. Opinion Evidence. — Upon a trial for murder, the defendant proposed to prove, by a witness who had examined the fatal wound on deceased, that, in his opinion, the same must have been inside by some one directly in front of deceased; which testimony, on objection of the prosecution, was excluded. Held, that the ruling was correct. A witness, though an expert, while he may describe the wound, giving its size, location, etc., will not be allowed to give his opinion as to the position of the parties at the time it was inflicted.
3. Error and Omission in Charge of the Court as to Penalty Harmless, when. — See a charge, set out in the opinion of the court, which was held not obnoxious to objection for bad spelling and omission as to penalty, where no exception had been reserved to said charge, and the jury could not have been misled by the same to the injury of appellant.
4. Separation of Jury. — An accidental separation of the jury for a few minutes will not constitute reversible error, where there was not the slightest probability that they were thereby influenced in their finding.
HURT, PRESIDING JUDGE.
Appellant was convicted of murder in the second degree, and his punishment assessed by the jury at five years in the penitentiary.
The statement of facts contains ample proof of murder in the second degree, proof of manslaughter, and of self-defense. We have never examined a statement of facts in which there was so much conflict in the evidence, or, as we think, more perjury. Murder in the second degree, manslaughter, and self-defense being presented, was the law correctly given in charge to the jury upon these phases of the case? Appellant requested one instruction, which was given. The record contains no bill of exceptions to the charge.
Upon motion for new trial, paragraphs 9 and 10 are complained of, because the things constituting adequate cause are limited to the injury of appellant. We do not think the paragraphs are subject to these contentions; but if they were, paragraph 11 cures the supposed error, rendering it harmless.
Paragraph 12 is complained of, the contention being, that it improperly instructs the jury upon the subject of cooling time. That this objection is well taken is very doubtful. But concede it to be incorrect, the error, if any, is entirely eradicated when read in connection with paragraph 13. The charge should be construed as a whole.
Upon the trial appellant proposed to prove by Ratcliff (he having examined the fatal wound on deceased), that in his opinion, judging from the direction and bearing of the wound, the same must have been made by some one directly in front of deceased. The proposed opinion of Ratcliff was rejected by the court, and appellant reserved his bill of exceptions. In this there was no error. A witness, though an expert, can describe the wound, giving its size, location, etc., but not his opinion as to the position of the parties.
Regarding the punishment, the court instructed the jury, if they "found appellant guilty, his punishment should be confinement in the penitentiary for any term not less than fives within your discretion," "five" being spelled "fives" and "years" being omitted; and upon this ground it is contended that the judgment should be reversed. There was no exception taken to the charge at the time, because of the omission and the bad spelling. The jury gave appellant the lowest term, five years. Were they misled by this charge to the injury of appellant? Evidently they were not.
The jury accidentally separated for a few minutes, without the slightest probability of being influenced thereby in their finding. There is no reversible error in the record, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.