DAVIDSON, Presiding Judge.
Appellant was convicted as an accomplice in the murder of Jim Humphries, and his punishment assessed at confinement in the penitentiary for life. The principals named in the indictment are Joe Wilkerson, Walter Wilkerson, and John Greenhaw.
The action of the court in changing the venue and refusing a severance has been treated in "the companion case of Stevens v. State, ante, p. 154. It is unnecessary to discuss those features of this case.
The court approved a bill of exceptions which was filed as a part of the record. Subsequently, but during the term, this bill was stricken out by the court on the motion of the district attorney, and this is assigned as error. We believe it is competent for the court to alter, change, or strike out a bill of exceptions, although approved and filed, if upon a proper showing the bill appears to be untrue or erroneous. The court has the power, at least during term time, to make a record speak the truth; and if, through mistake or otherwise, a bill of exceptions is shown not to be truthful, or to certify facts and matters which did not occur, the court, upon proper notice to the interested parties, has authority to make the matter appear of record as it actually occurred. This is a very salutary rule for both sides. If this were not true, an erroneous bill of exceptions could bring irreparable injury to a defendant, and the court would be powerless to remedy the wrong. Of 'course, passing upon these matters, the court should give full notice and ample opportunity to both sides to be heard in regard to the proposed corrections. Some of our courts have gone so far as to hold that this can be done even in vacation. This may be seriously questioned, but, in our judgment, there is.no question that the court has authority to make the record speak the truth during the term at which the matters occurred. See Conrad v. Walsh, 1 White & W. Civ. Cas. Court of App., sec. 231; 2 Thomp. Trials, sec. 2380; Railway v. Campbell (Texas Civ. App.), 34 S. W. Rep., 186; Railway v. Culberson, 72 Texas, 384; 3 Law. Rep. Ann., 567; Hamilton v. Burch, 28 Ind., 234; 3 Ene. Pl. and Prae., 503. The court certifies that notice of the motion was served upon defendant’s counsel, and it is evident that such notice was
served because a lengthy protest to the action of the court was filed, and later on appellant sought to reopen the matter. The bill which formed the subject matter of the contest was reserved to the action of the court in permitting the State to prove acts and declarations of Joe Wilkerson and W. B. Brooks in regard to the Humphries prior to the homicide, and, it may be, before the conspiracy entered 'into to murder the Humphries. It is contended that these acts and declarations can not be used as evidence against those who subsequently came into the conspiracy. We are of opinion that, if the bill could be considered as originally given, this testimony was admissible against appellant. Stevens v. State, ante, p. 154; Casner v. State, ante, p. 118; Harris v. State, 31 Texas Crim. Rep., 411; Smith v. State, 21 Texas Crim. App., 102. It was also admissible against principals in the murder, Wilkerson and Brooks being two.
The failure of the court to instruct the jury with reference to the law of alibi is assigned as error. This is predicated upon the theory that the testimony of the State was contradicted as to the presence of appellant at the meeting “in the woods” when the agreement to hang the Humphries was under discussion. If this constituted the entire testimony with reference to appellant’s connection with this matter, there” might be some merit in the contention. Horton testified that he was present at this meeting, and there Cain proposed that he and Horton should induce the Humphries to leave their homes, in order that the mob might secure them for the purpose of executing the conspiracy. Greenhaw testified to a meeting, also in the woods, but at a different date; but the indication from his testimony, however, is that the hanging of the Humphries was not then discussed. Mrs. Chambers testified "that in the spring, shortly before the homicide, Joe Wilkerson, one of the leaders of the mob, came to Kaufman County and spent the night with appellant. This was “during corn-planting time.” He also visited appellant’s house on Monday before the homicide on Tuesday night. Appellant’s residence was some twelve or fifteen miles from the residence of the Humphries and the scene of the homicide. The homicide occurred near the residence of the Humphries. Smith testified that he lived in Kaufman "County, a mile or two from appellant; that about the last of March or first of April, on Wednesday, appellant endeavored to persuade him “to go into the mob” for the purpose of hanging Jim, John, and George Humphries, naming Fayette Rains, John Greenhaw, Joe Wilkerson, Walter Wilkerson, Ben Boyd, John Thomas, Jenkins, and himself as the members of the mob. Appellant further stated that he and the others mentioned intended hanging the Humphries for stealing Joe Wilkerson’s hogs and harboring one Patterson, a fugitive for the homicide of an officer in Henderson County. Under this testimony it was not error for the court to fail to charge on the law of alibi. Under this testimony the connection of appellant with the conspiracy in advance of the homicide is amply shown, independent of the' meeting in the woods as testified by the witness Horton; and it
is not clear, if the court had selected the meeting in the woods, and applied the doctrine of alibi to that particular occurence, but that it would have intensified the testimony of Smith and Mrs. Chambers and Greenhaw against him on this proposition. Nor are we satisfied that it would not have been trenching upon very dangerous ground for appellant to have so selected the meeting testified by Horton as the evidence upon which to predicate the charge of alibi. The selection of this fact alone as a predicate for this charge, when other equally cogent facts remain, bearing on the same question, would tend strongly to intensify the force and effect of the remaining facts against the alibi. In any event, under this state of case, it was not error for the court to fail to charge on alibi.
It is strenuously insisted that the court’s definition of “malice aforethought” is erroneous. That portion of the charge is as follows: “Every person, with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either expressed or implied, shall be deemed guilty of murder. All murder committed with express malice is murder of the first degree. ‘Malice aforethought’ is' a term used in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed or words spoken. Express malice exists where a murder is committed with sedate, deliberate mind on the part of the murderer, and in pursuance of a formed design to kill the person killed. The mind of the murderer need not be entirely free from excitement in order to bring it within the meaning of the term ‘sedate and deliberate;’ for, if it be in such condition as to admit of reflection upon the character of -the act, then it is sedate and deliberate, within the meaning of the law.” A proper definition of “malice aforethought” has been the subject’ of varied adjudications. As was said in Harris v.
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DAVIDSON, Presiding Judge.
Appellant was convicted as an accomplice in the murder of Jim Humphries, and his punishment assessed at confinement in the penitentiary for life. The principals named in the indictment are Joe Wilkerson, Walter Wilkerson, and John Greenhaw.
The action of the court in changing the venue and refusing a severance has been treated in "the companion case of Stevens v. State, ante, p. 154. It is unnecessary to discuss those features of this case.
The court approved a bill of exceptions which was filed as a part of the record. Subsequently, but during the term, this bill was stricken out by the court on the motion of the district attorney, and this is assigned as error. We believe it is competent for the court to alter, change, or strike out a bill of exceptions, although approved and filed, if upon a proper showing the bill appears to be untrue or erroneous. The court has the power, at least during term time, to make a record speak the truth; and if, through mistake or otherwise, a bill of exceptions is shown not to be truthful, or to certify facts and matters which did not occur, the court, upon proper notice to the interested parties, has authority to make the matter appear of record as it actually occurred. This is a very salutary rule for both sides. If this were not true, an erroneous bill of exceptions could bring irreparable injury to a defendant, and the court would be powerless to remedy the wrong. Of 'course, passing upon these matters, the court should give full notice and ample opportunity to both sides to be heard in regard to the proposed corrections. Some of our courts have gone so far as to hold that this can be done even in vacation. This may be seriously questioned, but, in our judgment, there is.no question that the court has authority to make the record speak the truth during the term at which the matters occurred. See Conrad v. Walsh, 1 White & W. Civ. Cas. Court of App., sec. 231; 2 Thomp. Trials, sec. 2380; Railway v. Campbell (Texas Civ. App.), 34 S. W. Rep., 186; Railway v. Culberson, 72 Texas, 384; 3 Law. Rep. Ann., 567; Hamilton v. Burch, 28 Ind., 234; 3 Ene. Pl. and Prae., 503. The court certifies that notice of the motion was served upon defendant’s counsel, and it is evident that such notice was
served because a lengthy protest to the action of the court was filed, and later on appellant sought to reopen the matter. The bill which formed the subject matter of the contest was reserved to the action of the court in permitting the State to prove acts and declarations of Joe Wilkerson and W. B. Brooks in regard to the Humphries prior to the homicide, and, it may be, before the conspiracy entered 'into to murder the Humphries. It is contended that these acts and declarations can not be used as evidence against those who subsequently came into the conspiracy. We are of opinion that, if the bill could be considered as originally given, this testimony was admissible against appellant. Stevens v. State, ante, p. 154; Casner v. State, ante, p. 118; Harris v. State, 31 Texas Crim. Rep., 411; Smith v. State, 21 Texas Crim. App., 102. It was also admissible against principals in the murder, Wilkerson and Brooks being two.
The failure of the court to instruct the jury with reference to the law of alibi is assigned as error. This is predicated upon the theory that the testimony of the State was contradicted as to the presence of appellant at the meeting “in the woods” when the agreement to hang the Humphries was under discussion. If this constituted the entire testimony with reference to appellant’s connection with this matter, there” might be some merit in the contention. Horton testified that he was present at this meeting, and there Cain proposed that he and Horton should induce the Humphries to leave their homes, in order that the mob might secure them for the purpose of executing the conspiracy. Greenhaw testified to a meeting, also in the woods, but at a different date; but the indication from his testimony, however, is that the hanging of the Humphries was not then discussed. Mrs. Chambers testified "that in the spring, shortly before the homicide, Joe Wilkerson, one of the leaders of the mob, came to Kaufman County and spent the night with appellant. This was “during corn-planting time.” He also visited appellant’s house on Monday before the homicide on Tuesday night. Appellant’s residence was some twelve or fifteen miles from the residence of the Humphries and the scene of the homicide. The homicide occurred near the residence of the Humphries. Smith testified that he lived in Kaufman "County, a mile or two from appellant; that about the last of March or first of April, on Wednesday, appellant endeavored to persuade him “to go into the mob” for the purpose of hanging Jim, John, and George Humphries, naming Fayette Rains, John Greenhaw, Joe Wilkerson, Walter Wilkerson, Ben Boyd, John Thomas, Jenkins, and himself as the members of the mob. Appellant further stated that he and the others mentioned intended hanging the Humphries for stealing Joe Wilkerson’s hogs and harboring one Patterson, a fugitive for the homicide of an officer in Henderson County. Under this testimony it was not error for the court to fail to charge on the law of alibi. Under this testimony the connection of appellant with the conspiracy in advance of the homicide is amply shown, independent of the' meeting in the woods as testified by the witness Horton; and it
is not clear, if the court had selected the meeting in the woods, and applied the doctrine of alibi to that particular occurence, but that it would have intensified the testimony of Smith and Mrs. Chambers and Greenhaw against him on this proposition. Nor are we satisfied that it would not have been trenching upon very dangerous ground for appellant to have so selected the meeting testified by Horton as the evidence upon which to predicate the charge of alibi. The selection of this fact alone as a predicate for this charge, when other equally cogent facts remain, bearing on the same question, would tend strongly to intensify the force and effect of the remaining facts against the alibi. In any event, under this state of case, it was not error for the court to fail to charge on alibi.
It is strenuously insisted that the court’s definition of “malice aforethought” is erroneous. That portion of the charge is as follows: “Every person, with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either expressed or implied, shall be deemed guilty of murder. All murder committed with express malice is murder of the first degree. ‘Malice aforethought’ is' a term used in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed or words spoken. Express malice exists where a murder is committed with sedate, deliberate mind on the part of the murderer, and in pursuance of a formed design to kill the person killed. The mind of the murderer need not be entirely free from excitement in order to bring it within the meaning of the term ‘sedate and deliberate;’ for, if it be in such condition as to admit of reflection upon the character of -the act, then it is sedate and deliberate, within the meaning of the law.” A proper definition of “malice aforethought” has been the subject’ of varied adjudications. As was said in Harris v. State, 8 Texas Criminal Appeals, 90, 109, “A perfectly exact and satisfactory definition of that term, signifying its legal acceptation in a form at once clear and concise, has been often attempted, but with no very satisfactory permanent result. The differing minds of different courts have employed different terms and language in the attempt to convey substantially the same meaning; and, while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence, readily comprehensible by the average juror. About as clear, comprehensive, and correct definition as the authorities afford is that ‘malice is the condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.’ ” This has been recognized as a correct definition by courts of last resort, and one which announces a true rule by which to measure malice under out statute of murder. Another equally correct rule is thus stated: “Malice, in its legal sense, means the intentional doing of a wrongful act towards another without legal justification or excuse.” Each form has been em
ployed in charges, and sometimes both have been embodied. It is wholly immaterial which is used, as they have been held to convey substantially the same idea. For a discussion of this matter, see Martinez v. State, 30 Texas Criminal Appeals, 129, and authorities there collated. It was said in that case: “Other language might be used to convey the same idea, and other words could be employed which would give a satisfactory definition of the term ‘malice’ as it is employed in the two forms above quoted.” Applying these tests laid down by the authorities in this State in regard to the definition of “malice aforethought,” we believe the charge given by the court is sufficiently clear and explicit. If “ ‘malitie,’ in its legal sense, means the intentional doing of a wrongful act towards another, without legal justification or excuse,” is a sufficient definition of the term “malice aforethought,” it occurs to us that the definition given by the court, to wit, “ ‘Malice- aforethought’ is the term in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed or words spoken,” is equally so. A comparison of the two definitions, in our opinion, demonstrates the correctness of this statement.
If appellant entered into the conspiracy with those who subsequently committed the murder upon the Humphries by hanging them, not being present at the hanging, he was and is guilty, under the charge in this indictment, as an accomplice. See the well-considered case of Whitford v. State, 24 Texas Crim. App., 489. The judgment is affirmed.
Affirmed.