Milgate

Heydenfeldt, J., concurred.

The first error assigned by the appellant is the refusal of the Court below to permit one of the witnesses to testify for what purpose the shot gun, with which the homicide was committed, was loaded and used. This question was wholly immaterial. It was already in proof by the appellant's own witness, that he had gone to the house and taken the gun for the purpose of protecting himself against the dec *129 eased; whether it was loaded with fine shot for killing birds or not, Was of no consequence. It is sufficient that it was unlawfully used, and such use resulted in the death of the deceased.

The second error, is the refusal of the Court to charge the jury that “ if they believed from the evidence introduced in justification that there is a reasonable doubt whether or not the prisoner committed the act under a reasonable apprehension of impending danger and in self defense, they must give the prisoner the benefit of such doubt, and must find him not guilty.’’

This instruction was properly refused for two reasons; first, because it was calculated to mislead the mind of the jury, by directing their attention exclusively to the evidence of justification…