
    Shanks v. State.
    
    (Division B.
    Nov. 22, 1926.
    Suggestion of Error Overruled Jan. 3, 1927.)
    [110 So. 666.
    No. 25538.]
    Homicide. Oonflioting testimony as to whether shooting was accidental held for jury.
    
    Conflicting testimony relative to whether shooting of his wife by defendant was accidental held, to present question for jury.
    Appeal from circuit court of Leake county.
    HoN. Gr. E. WxlsoN, Judge.
    John Shanks was convicted of manslaughter, and he appeals.
    Affirmed.
    
      James T. Crawley, for appellant.
    No testimony is offered which will sustain a conviction of either murder or manslaughter. It was incumbent upon .the state to show that the defendant did unlawfully and feloniously kill and murder the deceased, and that beyond every reasonable doubt and to a moral-certainty. The state did not do this and the defendant at the close of the state’s testimony was entitled to a peremptory instruction.
    
      J. A. Lauderdale, Special Assistant Attorney-General, for the state.
    The defendant in the trial of the cause below contended that the shooting by him of his wife was an accident; the theory of the state was that he deliberately shot his wife and was guilty either of murder or manslaughter.
    The two theories went to the jury: were supported by testimony; and it was the province of the jury to determine which theory was true; that is, whether the shot was made deliberately or accidentally. By finding the defendant guilty, the jury has found that the theory of the state is true.
    In the Patty case, 126 Miss. 94, cited by counsel for appellant, the court held that the testimony of the defendant was not contradicted and that there was nothing for the jury -to pass upon. However, in the case at bar the testimony of the defendant was contradicted in every material particular.
    Argued orally by Jas. T. Crawley, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.
    
      
      Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 264, n. 89; Homicide, 30CJ, p. 333, n. 45.
    
   HoldeN, P. J.,

delivered the opinion of the court.

John Shanks appeals from a conviction of manslaughter and a sentence for a term of ten years in the penitentiary.

The appellant shot and killed his wife, and contended at the trial that the shooting was accidental. The testimony offered by Mm sustained tMs theory, but the physical facts and circumstances, as well as the dying declaration of the deceased, tended to show that the shooting’ was not accidental, but was intentionally done. This conflict in the testimony presented a question of fact for the decision of the jury, and their verdict of guilt is amply supported by the evidence in the case; consequently, we see no reason for a reversal on that ground.

The other reasons urged for reversal by the appellant have been carefully considered by us, and we see no merit in any of them. Therefore the judgment of the lower court is affirmed.

Affirmed.  