NELSON v. THE STATE

1. — Murder in Second Degree — Indictment — Grand Jurors — Date — Endorsement — File Mark.

In a prosecution for murder, the allegation "grand jurors for F. County." implied that they were composed and taken from said county. It is not necessary that the county attorney endorse his name upon the indictment. The clerk may correct his file mark on the indictment under the direction of the court.

Upon trial for murder, where the evidence showed that defendant shot the deceased and simultaneously shot a little girl, testimony of the shooting of the latter was properly admitted as res gestæ.

Upon trial for murder there was no error in admitting testimony that the crowd made exclamations, or a noise, at the time of the shooting.

Where defendant was convicted of murder in the second degree he could not complain of a charge on murder in the first degree; or that special charges, covered in the main charge, were refused.

BROOKS, JUDGE.

Appellant was convicted of murder in the second degree, and his punishment assessed at thirty years confinement in the penitentiary.

Appellant filed a motion in arrest of judgment because it does not affirmatively appear from the reading of the indictment that the grand jurors finding and returning the same were selected from the body of Falls County; that the phrase "grand jurors for Falls County" does not necessarily imply that they were composed from and taken in and from said Falls County; that the same is not endorsed with the name of the county attorney, giving his name, and because it appears to have been filed on the 21st day of January, 1906, which date is contradictory and inconsistent with the date of the offense therein described. Bill of exceptions presenting this matter shows that the indictment was really filed the 21st day of February, 1907, and the court had the clerk correct his file mark. There is no law requiring the county attorney to endorse his name upon the indictment. None of the objections to the indictment are well taken.

Bill of exceptions number 2 complains that the court erred in permitting the State to prove the killing of Lillian Storms. The evidence shows that appellant shot the deceased and simultaneously shot a little girl named Lillian Storms. This is a part of the res gestae and was properly admitted.

Bill of exceptions number 3 complains that the county attorney asked one of the State's witnesses the following question: "Were there shows? State whether they were in progress? Performances going on?" The defense objects on the ground that it was immaterial and irrelevant whether the shows were going on at the time or not. This testimony was evidently introduced to fix dates and circumstances incident to the killing. Certainly, abstractly speaking, it would be immaterial whether shows were going on at the time appellant killed deceased, but the evidence in this case shows that the killing occurred at the shows or carnival. The testimony is entirely legitimate.

Bill of exceptions number 4 complains that the crowd made exclamations at the time of the shooting, there being a large crowd present. No statements were made, the crowd made a noise. This was not error.

There is no error in the ruling of the court in charging on murder in the first degree; appellant was acquitted of that degree. Furthermore, even conceding error, it would be harmless in the light of this record. The charge in this case is an admirable presentation of the law applicable to the facts of this case. It is very full and appellant's special charges were either not law or were covered in the main charge of the court.

Finding no error in this record, the judgment is affirmed.

Affirmed.