
    205 So.2d 603
    Lieutenant McMILLAN v. STATE.
    1 Div. 278.
    Court of Appeals of Alabama.
    Dec. 19, 1967.
    E. F. Hildreth, Jr., Atmore, for appellant.
    MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   PRICE, Presiding Judge.

The charge was murder in the first degree. The trial resulted in a verdict of murder in the second degree. The punishment was fixed at twenty years in the penitentiary. Defendant appeals.

The state’s evidence tended to show that Mildred Dale was sitting on a stool at the counter at the Tin Top Inn in Monroe County, Alabama, when defendant came from a back room, walked over and stood in front of her and said something to Mildred. Mildred told him to go on and leave her alone. Whereupon defendant pulled a pistol from his pocket and shot her. The bullet entered her chest causing her death.

Defendant testified he had been living with Mildred Dale for five or six years; that Mildred had the gun on the day of the shooting; that he got it from her, left the cafe and when he returned he tried to give her the pistol but she refused to take it; that she hit him on the hand and the gun went off; that Willie Richerson took the gun from him and he ran because Willie was shooting at him; that he went to his Mother’s house to get some money and was on his way to the hospital when he was arrested.

Under the facts and circumstances, it was for the jury to determine whether the shooting was accidental or whether it was intentional. There was no error in denying the motion to exclude the state’s evidence.

We have carefully considered the entire record and find no reversible error therein. The judgment is affirmed.

Affirmed.  