White, J.
Appellant was indicted on November 1, 1873, in the District Court of Montague County, jointly with Andrew Brown, J. W. Bell, and Albert Harris, for the murder, in Montague County, of one B. S. Morrow, on September 5, A. D. 1873, About a month before the case was first called for trial, the defendant, George Brown, this appellant, was arrested and placed in confinement in the county jail.
On October 30, 1876, a copy of the indictment was served upon him in jail, it being the day upon which the term of the District Court commenced. A special venire was ordered the same day, made returnable on November 5, 1876. On Friday, November 3d, the case was continued, upon the affidavit of the defendant, to enable him to obtain the testimony of Stephen Sullivan and G. P. Bell.
With regard to the next step in the order of proceedings had upon the trial the record is certainly contradictory. The transcript says that on November 6, 1-876, came on to be heard a motion of the county attorney to set aside the continuance heretofore granted, which motion was sustained and the continuance set aside.; while defendant’s second application for a continuance is shown to have been filed upon November 4th, and in his bill of exceptions saved to the overruling of the application he states that on Saturday, November 4th, the first continuance was set aside because of the indictment of the absent witness, Stephen Sullivan, for [308]*308this same murder. The motion of the county attorney, which should have been in writing, is not set out in the transcript ; we will presume, however, that the bill of exceptions is correct, and that this motion was in fact filed and sustained on the 4th, instead of the 6th, of November.
The continuance having been set aside, defendant, on November 4, 1876, filed his application for a continuance for the want of the testimony of one David Lance, who resided in Lamar County, Texas, for whom an attachment had been issued and mailed to the sheriff of Lamar County, but which had not been returned.
This application for continuance was also overruled, and, on November 7th, defendant was placed upon trial, arraigned, and pleaded not guilty; was found guilty of murder in the first degree, and his punishment assessed at death.
The record in the case is very voluminous, and many questions are raised by the zealous counsel who have so ably defended the accused, under appointment of the court, on the trial below and on brief here. It is unnecessary, however, to attempt discussion of them all.
1. We are of opinion that the court erred in setting aside or refusing the continuance in the first instance, and that it was error in the next to overrule the subsequent application.
This court is not prepared to say that the inherent power which all courts have to control their orders, judgments, and decrees, during term time, would not carry with it the authority, under certain circumstances, to set aside a continuance granted in a criminal case, which is in the nature of an interlocutory order, without the consent of the defendant ; but we apprehend the circumstances calling for the exercise of the power, and the reasons for the same, should be of a very strong and cogent character, and such as to show that the action had was without material preju[309]*309dice or injury to the rights of the accused. Such practice has been of rare occurrence in this state. Only one instance reported in our decisions is remembered, the case of Callahan v. The State, 30 Texas, 488, wherein the court say: “ The record shows that when the cause was called for trial, the witness for the state being absent, the defendant insisted upon a trial, but a continuance was granted with the express understanding that it should be set aside on the appearance of the witnesses. When this took place, therefore, the defendant, if his witnesses were not present, could have made a showing for a continuance if he had any cause, but he assigned no cause, and we see no error in the court ordering a trial.”
The case of McKay v. The State, 12 Mo. 492, is almost analogous upon this point. Byan, J., delivering the opinion, says : 66 Let us, for a moment, look at the facts as they appear on the record in this case. On the second day of the regular term of the court the counsel for the state moves the court to continue this case; his motion prevails ; the case is continued until the next regular term. An order is made to have the defendant removed to the jail in St. Louis county, and the case, so far as it regards this term, appears at an end. On the fourth day of the term the counsel for the state moves the court to set aside the order of continuance and order remanding the prisoner to St. Louis jail. It appears that he notified defendant’s counsel of his intended application for the setting aside; the defendant’s counsel objects ; but the court sustains the motion and sets aside the order of continuance, and fixes the trial for an adjourned term to commence on the 18th day of December following, and orders the defendant and his counsel to be notified thereof. From the record it is fair to presume that the defendant knew nothing of this order at the time; that his witnesses had dispersed, left the court, when the case was continued on the second day of the term. Such a pro[310]*310ceeding is too dangerous to the life and liberty of the citizen, and though it may sometimes happen without injury to the defendant, yet as a practice it should not be tolerated.” In that case the continuance had been granted on account of the absence of the only witness for the state. Two days afterwards the witness arrived, and the motion to set aside was based upon the fact that this witness was in the last stage of consumption, and would not probably live to the next term. As stated above, a court may have the power to. exercise such authority, but the power should be exercised only in such rare, exceptional cases as show most plainly no abuse of discretion and no material injury to the accused.
2. The subsequent application for continuance made on November 4th, which, under the circumstances as detailed above, we can consider in no other light than as a first application, was in compliance with the requirements of the statute (Pasc. Dig., arts. 2987, 2988), and should have been granted. Dinkins v. The State, 42 Texas, 250; Skaro v. The State, 43 Texas, 88; Shackelford v. The State, 43 Texas, 138. See, also, Swofford and Marksbury v. The State, ante, p. 76.
3. It is necessary that we should notice another question of practice suggested by one of defendant’s bills of exception.
It seems that all the witnesses in the case had been placed under the rule, by order of the court, at the request of parties. One of the counsel of defendant obtained permission of the court to go into the room where they were kept and talk with the witnesses. Afterwards, when one of the state’s witnesses had been examined, the attorney proposed to take the stand and impeach the testimony of the witness by swearing that in the interview had between them, whilst the witness was under the rule, he had made statements contradictory of his statements made from the wit[311]*311ness stand. The court refused to admit the testimony, because the counsel had conversed with the witness by leave and permission of the court.
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White, J.
Appellant was indicted on November 1, 1873, in the District Court of Montague County, jointly with Andrew Brown, J. W. Bell, and Albert Harris, for the murder, in Montague County, of one B. S. Morrow, on September 5, A. D. 1873, About a month before the case was first called for trial, the defendant, George Brown, this appellant, was arrested and placed in confinement in the county jail.
On October 30, 1876, a copy of the indictment was served upon him in jail, it being the day upon which the term of the District Court commenced. A special venire was ordered the same day, made returnable on November 5, 1876. On Friday, November 3d, the case was continued, upon the affidavit of the defendant, to enable him to obtain the testimony of Stephen Sullivan and G. P. Bell.
With regard to the next step in the order of proceedings had upon the trial the record is certainly contradictory. The transcript says that on November 6, 1-876, came on to be heard a motion of the county attorney to set aside the continuance heretofore granted, which motion was sustained and the continuance set aside.; while defendant’s second application for a continuance is shown to have been filed upon November 4th, and in his bill of exceptions saved to the overruling of the application he states that on Saturday, November 4th, the first continuance was set aside because of the indictment of the absent witness, Stephen Sullivan, for [308]*308this same murder. The motion of the county attorney, which should have been in writing, is not set out in the transcript ; we will presume, however, that the bill of exceptions is correct, and that this motion was in fact filed and sustained on the 4th, instead of the 6th, of November.
The continuance having been set aside, defendant, on November 4, 1876, filed his application for a continuance for the want of the testimony of one David Lance, who resided in Lamar County, Texas, for whom an attachment had been issued and mailed to the sheriff of Lamar County, but which had not been returned.
This application for continuance was also overruled, and, on November 7th, defendant was placed upon trial, arraigned, and pleaded not guilty; was found guilty of murder in the first degree, and his punishment assessed at death.
The record in the case is very voluminous, and many questions are raised by the zealous counsel who have so ably defended the accused, under appointment of the court, on the trial below and on brief here. It is unnecessary, however, to attempt discussion of them all.
1. We are of opinion that the court erred in setting aside or refusing the continuance in the first instance, and that it was error in the next to overrule the subsequent application.
This court is not prepared to say that the inherent power which all courts have to control their orders, judgments, and decrees, during term time, would not carry with it the authority, under certain circumstances, to set aside a continuance granted in a criminal case, which is in the nature of an interlocutory order, without the consent of the defendant ; but we apprehend the circumstances calling for the exercise of the power, and the reasons for the same, should be of a very strong and cogent character, and such as to show that the action had was without material preju[309]*309dice or injury to the rights of the accused. Such practice has been of rare occurrence in this state. Only one instance reported in our decisions is remembered, the case of Callahan v. The State, 30 Texas, 488, wherein the court say: “ The record shows that when the cause was called for trial, the witness for the state being absent, the defendant insisted upon a trial, but a continuance was granted with the express understanding that it should be set aside on the appearance of the witnesses. When this took place, therefore, the defendant, if his witnesses were not present, could have made a showing for a continuance if he had any cause, but he assigned no cause, and we see no error in the court ordering a trial.”
The case of McKay v. The State, 12 Mo. 492, is almost analogous upon this point. Byan, J., delivering the opinion, says : 66 Let us, for a moment, look at the facts as they appear on the record in this case. On the second day of the regular term of the court the counsel for the state moves the court to continue this case; his motion prevails ; the case is continued until the next regular term. An order is made to have the defendant removed to the jail in St. Louis county, and the case, so far as it regards this term, appears at an end. On the fourth day of the term the counsel for the state moves the court to set aside the order of continuance and order remanding the prisoner to St. Louis jail. It appears that he notified defendant’s counsel of his intended application for the setting aside; the defendant’s counsel objects ; but the court sustains the motion and sets aside the order of continuance, and fixes the trial for an adjourned term to commence on the 18th day of December following, and orders the defendant and his counsel to be notified thereof. From the record it is fair to presume that the defendant knew nothing of this order at the time; that his witnesses had dispersed, left the court, when the case was continued on the second day of the term. Such a pro[310]*310ceeding is too dangerous to the life and liberty of the citizen, and though it may sometimes happen without injury to the defendant, yet as a practice it should not be tolerated.” In that case the continuance had been granted on account of the absence of the only witness for the state. Two days afterwards the witness arrived, and the motion to set aside was based upon the fact that this witness was in the last stage of consumption, and would not probably live to the next term. As stated above, a court may have the power to. exercise such authority, but the power should be exercised only in such rare, exceptional cases as show most plainly no abuse of discretion and no material injury to the accused.
2. The subsequent application for continuance made on November 4th, which, under the circumstances as detailed above, we can consider in no other light than as a first application, was in compliance with the requirements of the statute (Pasc. Dig., arts. 2987, 2988), and should have been granted. Dinkins v. The State, 42 Texas, 250; Skaro v. The State, 43 Texas, 88; Shackelford v. The State, 43 Texas, 138. See, also, Swofford and Marksbury v. The State, ante, p. 76.
3. It is necessary that we should notice another question of practice suggested by one of defendant’s bills of exception.
It seems that all the witnesses in the case had been placed under the rule, by order of the court, at the request of parties. One of the counsel of defendant obtained permission of the court to go into the room where they were kept and talk with the witnesses. Afterwards, when one of the state’s witnesses had been examined, the attorney proposed to take the stand and impeach the testimony of the witness by swearing that in the interview had between them, whilst the witness was under the rule, he had made statements contradictory of his statements made from the wit[311]*311ness stand. The court refused to admit the testimony, because the counsel had conversed with the witness by leave and permission of the court. In qualifying the bill of exceptions taken to this ruling, the district judge says : “It has been the uniform practice of the courts in this part of the state to permit the counsel privately to converse with state’s witnesses so as to inform himself as to the testimony of the witness, * * * and the state’s witnesses were usually admonished to talk freely with the defendant’s counsel.” This practice has, perhaps, grown out of a misconception of the decision of the Supreme Court in the case of Williams v. The State, 35 Texas, 365, but a reference to that case will not warrant the extent to which ‘6 the uniform practice,” as stated by the court above, would necessarily lead. In that case, Walker, J., says : “ Placing the state’s witnesses under the rule will not deprive the district attorney of the right to confer with them in a proper manner ; this is his privilege, and, moreover, may be regarded as his duty. Nor is it any infraction of the law, breach of professional ethics, or cause of suspicion against the conduct of either the attorney or witness that counsel should freely confer with their own witness, both before and during the trial of any cause, civil or criminal.”
The primary object of placing witnesses under the rule is that they may not hear the testimony of any other witness examined in the cause, and thereby to prevent them from concocting evidence in support of, or contradictory to, each other, and it is furthermore supposed to be one of the best modes yet devised for the preservation of truth and the detection of falsehood. Our statute provides that, ‘ ‘ at the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer, and removed out of the court-room to some place where they cannot hear the testimony as delivered by any other witness [312]*312in the cause. This is termed placing witnesses under the rule.” Pasc. Dig., art. 3047.
“Art. 3048. When witnesses are placed under the rule, those summoned for the prosecution may be kept separate from those summoned for the defense, or they may all be kept together, as the court shall direct.
' “Art. 3049. Witnesses, when under the rule, shall be attended by an officer and all their reasonable wants provided for, unless the court, in its discretion, directs that they be allowed to go at large.”
“ This separation of the witnesses is not a thing of absolute right to be demanded, for instance, by the prisoner ; yet it is a matter pretty much of course to grant the motion for separation, whenever and by whichever party made. The order for the removal of witnesses from the court, being a matter within the discretion of the presiding judge, may be put in such form as to meet the particular demands of justice and convenience in the individual case. If, for example, the assistance of some of the witnesses is required in conducting the prosecution or defense, these may be permitted to remain while the rest are excluded. So the witnesses who are summoned as experts, and an attorney in the cause, and witnesses called to testify to the character for truth and veracity of a witness may all be permitted to remain in the court-room while the rest are sent away.” 1 Bishop’s Cr. Proc., secs. 1086, 1087; 1 Greenl. on Ev., sec. 442; Roach v. The State, 1 Texas, 262; Goins v. The State, 41 Texas, 344; Sherwood v. The State, 42 Texas, 498.
From the above authorities it will be perceived that the order of placing witnesses under the rule and the terms of the order are confided, in a great measure, to the sound discretion of the judge. But, whilst this is so, we apprehend that discretion in no case should be exercised in such a man[313]*313ner as would likely defeat the very object and purposes for which it is invoked; and a rule or “a uniform practice” which is likely to produce such results, it seems to us, would be “more honored in the breach than the observance.” There are rare exceptional cases where it might be proper to permit attorneys to converse with their own witnesses who are under the rule, but this privilege, it seems to us, should be limited upon condition that the conversation be had and held in the presence and hearing of some officer of the court; in this way, we apprehend, the security of the rule may be protected and no injustice done. Besides, should a question of veracity arise subsequently, between counsel and the witness, the officer’s testimony can be used in settling the matter.
It is the duty of attorneys to prepare and acquaint themselves with their cases by talking to the witnesses before the announcement for trial; and, if attorneys are appointed by the court to defend, it is the duty of the court to furnish them full opportunity and facility to converse with the witnesses, and make their necessary preparation before they are forced into trial; and this is especially the duty of the court in cases involving the grave issues of the life or liberty of the citizen.
The court, however, did not err in refusing to allow the attorney to attempt to impeach the state’s witness by testifying to contradictory statements made to him whilst the witness was under the rule. It is, in the most imperative cases, a very delicate duty for an attorney to be compelled to oiler himself as a witness in behalf of the cause he is advocating, and, in most cases, a position which should always rather be shunned than sought for, whenever it can possibly be avoided.
4. We are of opinion that the charge of the court is, to some extent, obnoxious to the criticism of counsel, in that [314]*314it is so framed in certain paragraphs that it appears to assume the guilt of the defendant, and was calculated to lead the jury to infer that such was the opinion of the court. Take the following portions of the charge, for instance. The court says:
“ In this case, gentlemen, the court charges you that the defendant is either guilty of murder in the first degree, or not guilty, and, by reference to the foregoing definition of the crime of murder, you will see that the defendant must have killed the deceased with a sedate, deliberate mind, and formed design, and you are to judge from the circumstances attending the killing whether that state of mind did exist or not.” And again : “To make the mind deliberate, the accused must have reflected whether he would kill or not,” etc.
To our minds these instructions, or rather the language in which they are clothed, are equally if indeed they are not more objectionable than a charge quoted in Walker v. The State, 42 Texas, 370, somewhat similar, and upon which the court say: “ It is very different where the charge is so shaped as to take it for granted that the defendant is the person who did the act of shooting, when that is the only fact in controversy, as exhibited in the evidence. Being placed prominently in the conclusion of the principal charge, and being applied to this case directly in connection with such facts as would be sufficient to make the killing murder in the first degree by the defendant, none of which additional facts were in controversy at all, it was well calculated to injure the rights of the defendant.” Pase. Dig., art. 3137; Searcy v. The State, 1 Texas Ct. App. 440, and authorities there cited.
Upon another branch of the case the court further charged the jury that “ a girl of tender years and immature mind, acting under the direction and command of those having authority over her, will not be an accomplice in the com[315]*315mission of a crime, although in so acting she render assistance, aid, and comfort to the real author of the crime.” Unless this instruction referred to the testimony of the state’s witness, Mrs. Lucinda Barras, it is wholly inapplicable to any portion of the facts in this case. If it referred to the testimony of that witness, then the charge is incorrect in assuming that the witness was of such tender years and immature mind as to render her irresponsible in law for her actions as an accomplice to a murder, should the evidence otherwise establish that fact. This witness’ own testimony is that she was some seventeen years old at the date when she testified, and that the facts about which she testified took place three years before ; this would make the age of the witness fourteen years at the date of the transaction. Now, age is prescribed in our statute as follows :
“No person shall, in any case, be convicted of any offense committed before he was of the age of nine years ; nor of any offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” Pasc. Dig., art. 1638; Wussing v. The State, 33 Texas, 659.
5. The verdict in this case was not sufficient to warrant a judgment for murder in the first degree. The verdict reads as follows:
“ We, the jury, find the defendant guilty, and assess his punishment at death.”
The case of Buster v. The State, 42 Texas, 315, is directly in point. Our statute reads : [316]*316ranted.” Buster v. The State, 42 Texas, 315; Murray v. The State, 1 Texas Ct. App. 430.
[315]*315“ If the jury shall find any person guilty of murder, they shall find by their verdict whether it is of the first or second degree.” Pasc. Dig., art. 2268. “Unless the defendant is found guilty of murder in the first degree, the court cannot say that they have not assessed a penalty not war-
[316]*316For the errors committed during the progress of the trial in the lower court, which have been herein discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.