¶1 Appellant was convicted of assault to murder, his punishment being assessed at two years confinement in the penitentiary.
¶2 The evidence shows that the alleged assaulted party, Lusk, Wilmus Neeley and appellant were squirrel hunting, the two Neeleys being brothers and appellant their cousin. They had shot three squirrels, one of which lodged in a tree, which they failed to get, and it was left in the tree. Appellant and Lusk exhausted their ammunition. Returning from their hunt in the direction, of home, Lusk testified, they were quarrelling about who killed this squirrel they failed to secure and became a little warm in their colloquy, and that appellant went to his brother, Wilmus Neeley, and undertook to take the gun from him. There was a scuffle between the two Neeleys over the gun. ' Lusk is not clear in his testimony whether the gun was fired intentionally or accidentally, but some of his evidence indicates that *509 appellant had secured the gun from his cousin when it was fired, and the State, therefore, contends this is sufficient evidence to show an intentional shooting. The testimony of Wilmus Neeley was that defendant asked for the gun to go over to a duck pond near by for the purpose of shooting ducks. This request was based on, it seems, two reasons: The first was that appellant’s gun was a rifle, and, second, that his ammunition was exhausted. Wilmus Neeley’s gun was a shotgun and he had cartridges left. He declined to let his brother have it, and they had a scuffle over it. That his brother had the gun by the barrel and while they were scuffling over the gun it was accidentally discharged. The great weight of the testimony indicated that the gun was accidentally discharged. Appellant also testifies to that effect. There are quite a number of statements from the alleged assaulted party to the same effect. They were boys, none of them over twenty years of age. The shot were small shot and took effect about the shoulder of the assaulted party, the range of the shot being upward. Some of the shot were picked out just under the surface of the skin.
¶3 One of the questions suggested for revision is the sixth clause of the court’s charge, which is as follows: “You are further instructed, gentlemen, that if the alleged injured party, Raymond Lusk, was shot accidentally or in a scuffle over the gun between Allie Neeley and Wilmus Neeley and without any intent on the part of the said Allie Neeley to murder the alleged injured party, Raymond Lusk, or if you have a reasonable doubt as to the intent to kill, you should acquit the defendant.” We do not believe that this charge is subject to serious criticism. We think the statement, “if the alleged injured party, Raymond Lusk, was shot accidentally or in a scuffle over the gun between Allie Neeley and Wilmus Neeley and without any intent on the part of the said Allie Neeley to murder the alleged injured party,” is but a different way of putting the same question and amounts to a statement to the same effect, that is, that there was no intent to kill and that the killing was in fact accidental. If the killing was accidental, or if appellant shot deceased in a scuffle without intent to kill, he would not be guilty. The instruction in fact is somewhat broader and more favorable to appellant than if the issue of accidental killing had been submitted in general terms. It authorized an acquittal if in any way the jury should find it an accident, or if, as applied to the facts of a scuffle between the parties, the shooting was without intent to kill, they would find him not guilty. It will be noticed also that these issues are submitted in the disjunctive and in either event appellant would be entitled to an acquittal, that is, the jury were instructed to acquit if the gun was fired accidentally, and were also instructed to acquit if it was discharged in a scuffle but without intent to kill.
¶4 The only other question of any consequence raised in the record is the sufficiency of the evidence. There was strong evidence from *510 which the jury might have found an accidental killing, but the facts are not wholly inconsistent with culpable homicide, and we think the evidence is sufficient to sustain the conviction.
¶5 Finding no error in the record, the judgment of conviction is affirmed.
¶6 Affirmed.