Willson, J.
The defendant was indicted, jointly with one Stony Broxon, for the murder of J. W. Morris, in Mavarro county, .on the twentieth day of February, 1882. He was tried alone, his co-defendant Broxon not having been arrested. The jury found him guilty of murder in the first degree, and assessed his punishment at confinement in the penitentiary for life.
J. W. Morris was, at the time he was murdered, postmaster of [151]*151the village of Rice in Mavarro county, and was also engaged in the mercantile business at that place. He kept the postoffice in his store house, which store house was situated a few steps only from his residence. On the night of the twentieth of February, 1882, he was called from his residence to the store, and in a few moments after he left to go to his store two shots were fired, the sound of which appeared to be in the direction of and in the store, arid immediately thereafter Morris returned into his residence, where his wife was, and exclaimed that he was shot. His wife asked him who had shot him, and he replied, “ He told me to hold up my hands and shot me.” He died in a few minutes, without making any other statements than those above mentioned. The cause of his death was a gun shot wound in the breast. Mo person was seen about the store, nor any footprints, or other indicia of the assassin who perpetrated the murder, except a bullet which was found on the floor inside the store, somewhat battered and having the appearance of having been discharged from a firearm, and a place on the floor which presented the appearance of having been struck by a bullet. The store doors were found to be closed and locked, and the keys on the person of the deceased.
It would seem from this state of facts improbable that the shots were fired inside the store house, but this seeming improbability is explained by the testimony of Dr. Melton, a physician, who testified as a witness for the State. He testified as follows: “A man shot like Morris would have enough sense and vitality to shut and lock the door, and put things in their proper places as against thieves. There are many instances recorded in medical journals of the kind, particularly where internal hemorrhage is the cause of death. It is not uncommon for a man so shot to close a door and carefully lock it. Morris died from internal hemorrhage.” This same witness, who was the physician that examined the wound that produced the death of Morris, stated that it was a small wound, made apparently by a ball the size of a buckshot. The bullet or ball found in the store house was of a size corresponding with the wound.
It may be safely assumed we think, from the evidence: 1. That J. W. Morris was shot and killed by some person other than himself. 2. That he was shot inside his store house, and that the instrument used in effecting his death was a pistol of smell calibre. 3. That the killing was a deliberate murder, perpetrated doubtless in an attempt at robbery. Having reached these con[152]*152elusions, the next inquiry arising is: Was the defendant the assassin or one of the assassins who perpetrated the murder? Before proceeding, however, to discuss the questions which relate directly to this inquiry, we will dispose of some other points presented by defendant’s bills of exception.
In the formation of the jury two of the persons summoned to serve as jurors in the case upon their voir dire stated, in answer to the question, “Have you any conscientious scruples in regard to the infliction of the punishment of death for crime?” that they would not hang a man on circumstantial evidence. The court held these persons to be disqualified to serve as jurors in the case, and stood them aside, over the objections of the defendant; to which action of the court the defendant duly excepted, and saved his exceptions by bill. In Shafer v. The State, 7 Texas Ct. App., 339, this precise question was decided, and it was held that the juror thus answering was disqualified, and that it was not error in the court to stand him aside. We think that decision well supported by both reason and authority, and shall adhere to it. (The State v. Pritchard, 15 Nev., 74; 1 Bish. Cr. Proc., Sec. 918.)
The purpose of the law is to provide a jury of men who will try the case fairly and impartially, both for the State and the accused, in accordance with the law and the evidence. Circumstantial evidence is competent and legal evidence, and a juror whose convictions are such that he cannot conscientiously enforce the law upon this character of evidence cannot be considered a fair and impartial juror. We think the court acted properly in standing aside the persons who by their own statements disclosed that they were not competent to fill the full measure of jurors in the case.
Another error assigned by defendant is in relation to the admission of certain testimony offered by the State. J. W. Broxon, Sr., the father of Stony Broxon, the party jointly charged with defendant with the murder of Morris, was asked by the State’s counsel if he had not made certain statements to the grand jury in relation to his son’s whereabouts on the night of the murder, and which statements were contrary to those made by him upon the trial. The defendant objected to the witness answering the questions; first, because the State could not be heard to impeach her own witness; and second, because the proceedings had before the grand jury could not be given in evidence in a case of this kind. The court overruled the objections and required the [153]*153witness to answer the questions, and defendant excepted. The prosecution afterwards introduced several of the grand jurors, who testified to the statements made before their body while in session, by the witness Broxon, in regard to the whereabouts of his son Stony Broxon on the night of the murder.
We do not think that the first ground of objection to this evidence is a good one. We think it is fully answered by Article 755 of the Code of Criminal Procedure, which provides as follows: “ The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.”
The other ground of objection is more serious, and it is one which has been heretofore held by this court to be tenable. In Ruby v. The State, 9 Texas Ct. App., 353, this precise question was determined by this court, and it was held that testimony of the character under consideration was inadmissible. In that case the defendant sought to impeach a material witness for the State by laying the proper predicate and then proving that he had made statements before the grand jury in conflict with his evidence on the trial. It was objected by the attorney for the State “that the witness could not be made to disclose what he had sworn before the grand jury.” The objection was sustained and the proffered evidence rejected, and it was held by this court that in this there was no error. .
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Willson, J.
The defendant was indicted, jointly with one Stony Broxon, for the murder of J. W. Morris, in Mavarro county, .on the twentieth day of February, 1882. He was tried alone, his co-defendant Broxon not having been arrested. The jury found him guilty of murder in the first degree, and assessed his punishment at confinement in the penitentiary for life.
J. W. Morris was, at the time he was murdered, postmaster of [151]*151the village of Rice in Mavarro county, and was also engaged in the mercantile business at that place. He kept the postoffice in his store house, which store house was situated a few steps only from his residence. On the night of the twentieth of February, 1882, he was called from his residence to the store, and in a few moments after he left to go to his store two shots were fired, the sound of which appeared to be in the direction of and in the store, arid immediately thereafter Morris returned into his residence, where his wife was, and exclaimed that he was shot. His wife asked him who had shot him, and he replied, “ He told me to hold up my hands and shot me.” He died in a few minutes, without making any other statements than those above mentioned. The cause of his death was a gun shot wound in the breast. Mo person was seen about the store, nor any footprints, or other indicia of the assassin who perpetrated the murder, except a bullet which was found on the floor inside the store, somewhat battered and having the appearance of having been discharged from a firearm, and a place on the floor which presented the appearance of having been struck by a bullet. The store doors were found to be closed and locked, and the keys on the person of the deceased.
It would seem from this state of facts improbable that the shots were fired inside the store house, but this seeming improbability is explained by the testimony of Dr. Melton, a physician, who testified as a witness for the State. He testified as follows: “A man shot like Morris would have enough sense and vitality to shut and lock the door, and put things in their proper places as against thieves. There are many instances recorded in medical journals of the kind, particularly where internal hemorrhage is the cause of death. It is not uncommon for a man so shot to close a door and carefully lock it. Morris died from internal hemorrhage.” This same witness, who was the physician that examined the wound that produced the death of Morris, stated that it was a small wound, made apparently by a ball the size of a buckshot. The bullet or ball found in the store house was of a size corresponding with the wound.
It may be safely assumed we think, from the evidence: 1. That J. W. Morris was shot and killed by some person other than himself. 2. That he was shot inside his store house, and that the instrument used in effecting his death was a pistol of smell calibre. 3. That the killing was a deliberate murder, perpetrated doubtless in an attempt at robbery. Having reached these con[152]*152elusions, the next inquiry arising is: Was the defendant the assassin or one of the assassins who perpetrated the murder? Before proceeding, however, to discuss the questions which relate directly to this inquiry, we will dispose of some other points presented by defendant’s bills of exception.
In the formation of the jury two of the persons summoned to serve as jurors in the case upon their voir dire stated, in answer to the question, “Have you any conscientious scruples in regard to the infliction of the punishment of death for crime?” that they would not hang a man on circumstantial evidence. The court held these persons to be disqualified to serve as jurors in the case, and stood them aside, over the objections of the defendant; to which action of the court the defendant duly excepted, and saved his exceptions by bill. In Shafer v. The State, 7 Texas Ct. App., 339, this precise question was decided, and it was held that the juror thus answering was disqualified, and that it was not error in the court to stand him aside. We think that decision well supported by both reason and authority, and shall adhere to it. (The State v. Pritchard, 15 Nev., 74; 1 Bish. Cr. Proc., Sec. 918.)
The purpose of the law is to provide a jury of men who will try the case fairly and impartially, both for the State and the accused, in accordance with the law and the evidence. Circumstantial evidence is competent and legal evidence, and a juror whose convictions are such that he cannot conscientiously enforce the law upon this character of evidence cannot be considered a fair and impartial juror. We think the court acted properly in standing aside the persons who by their own statements disclosed that they were not competent to fill the full measure of jurors in the case.
Another error assigned by defendant is in relation to the admission of certain testimony offered by the State. J. W. Broxon, Sr., the father of Stony Broxon, the party jointly charged with defendant with the murder of Morris, was asked by the State’s counsel if he had not made certain statements to the grand jury in relation to his son’s whereabouts on the night of the murder, and which statements were contrary to those made by him upon the trial. The defendant objected to the witness answering the questions; first, because the State could not be heard to impeach her own witness; and second, because the proceedings had before the grand jury could not be given in evidence in a case of this kind. The court overruled the objections and required the [153]*153witness to answer the questions, and defendant excepted. The prosecution afterwards introduced several of the grand jurors, who testified to the statements made before their body while in session, by the witness Broxon, in regard to the whereabouts of his son Stony Broxon on the night of the murder.
We do not think that the first ground of objection to this evidence is a good one. We think it is fully answered by Article 755 of the Code of Criminal Procedure, which provides as follows: “ The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.”
The other ground of objection is more serious, and it is one which has been heretofore held by this court to be tenable. In Ruby v. The State, 9 Texas Ct. App., 353, this precise question was determined by this court, and it was held that testimony of the character under consideration was inadmissible. In that case the defendant sought to impeach a material witness for the State by laying the proper predicate and then proving that he had made statements before the grand jury in conflict with his evidence on the trial. It was objected by the attorney for the State “that the witness could not be made to disclose what he had sworn before the grand jury.” The objection was sustained and the proffered evidence rejected, and it was held by this court that in this there was no error. . The decision is based upon a construction of Article 384 of the Code of Criminal Procedure prescribing the oath for grand jurors, and which reads: “The State’s counsel, your fellows’, and your own, you shall keep secret, unless required to disclose the same in the course of a judicial proceeding in which the truth or falsity of the evidence given in the grand jury room in a criminal case shall be under investigation.” The construction placed upon this article of the code was that it prohibited a witness from testifying to any matters which occurred in the grand jury room, except in the particular instance specified therein; that is, where he was required to do so in the course of a judicial proceeding in which the truth or falsity of the evidence given in the grand jury room in a criminal case shall be under investigation. If we adhere to this decision we must hold that the court below erred in admitting the evidence objected to, and for this cause, if for no other, reverse the judgment of conviction.
[154]*154But, upon full consideration and mature reflection, and a more careful examination of the authorities, we are convinced that the decision of the question in the Ruby case is incorrect, and not supported by the great weight of authority. Hr. Wharton in his work qn Criminal Evidence, Sec. 510, says: “It was at one time supposed that a grand juror was required by his oath of secrecy to be silent as to what transpired in the grand jury room; but it is now held that such disclosure, wherever it is material to explain what was the issue before the grand jury, or what was the testimony of particular witnesses, will be required.” In support of the text, the author, in a note, cites numerous decisions of the highest authority in America. The text of Mr. Wharton is not fully sustained by Mr. Gfreenleaf (1 Greenl. Ev., Sec. 252), but it is founded upon more modern decisions, and we think, upon better reasons than the ancient rule which excluded such evidence upon the ground of public policy. The liberty and the life of the citizen may depend upon such evidence, as well as the enforcement of the laws of the land for the protection of society. Of course a prudent discretion should be exercised by the court in the admission of such testimony. It is not properly admissible for all purposes, nor in reference to all the proceedings of the grand jury. It is only when, in the judgment of the court, it becomes material to the administration of justice, that it should be allowed. Nor will it be received to impeach the finding of the grand jury, or to show what was the vote on the finding. (Whart. Cr. Ev., Sec. 510.) We conclude that the result of the most carefully considered decisions in this country is a contrary doctrine from the one announced by this court in Ruby v. The State, supra; and we therefore overrule that case in so far as it determines the question under consideration, and hold that the trial court did not err-in admitting the evidence referred to.
We will now return to the inquiry as to the guilt of the defendant of this atrocious murder, and the sufficiency of the evidence to support the verdict of conviction.
The principal witness for the State is one Talley Guynes, who testified in substance that the killing occurred on Monday night. On the Saturday before the killing Stony Broxon, the defendant, and the witness were at the store of the deceased in Rice. ' Witness had been' acquainted with defendant about three weeks when the killing occurred. They occupied the same room during that time, at Broxon’s. On Sunday morning before the murder, [155]*155Stony Broxon, the defendant, and witness were talking about robbery a good deal. Witness remarked that “a fellow could make a pretty lucky haul on Morris now.” Stony said we three were enough to go through him. Witness said, “I would not; that my foot was sore and he would know me, and that besides Morris was a friend of mine.” Frank Clanton said he and Stony were enough by themselves. On the Monday evening of the killing Stony Broxon and the defendant Clanton left Broxon’s about the same time, Stony Broxon leaving on horseback and Clanton on foot. Clanton went off in the direction of Rice, and said he was going to old man Abe’s, meaning Mr. Fanning’s, who lived somewhat in the direction of Rice. Witness saw Clanton no more until the next day. He also saw Stony Broxon the next morning. Stony Broxon returned that night—■ the night of the murder—but witness did not know what time in the night he returned, as he, witness, was asleep. Clanton did not return that night. Witness remained at Broxon’s the night of the murder, and Stony Broxon was not there at supper, nor at family prayers, nor was Clanton. When Clanton left Broxon’s on the Monday evening of the killing he had a pistol—• the smaller of the two shown witness on the trial, or one exactly like it. On Friday after the killing defendant Clanton and witness left Broxon’s together, to go west. Their agreement was to go to Weatherford, where Stony Broxon was to meet them, and then they three, were to engage in the highway robbery business. Clanton and witness staid all night, Friday night, in Rice. They did not intend to stay there, but reached there too late for the train, and were compelled to remain over until next morning. Mext morning they proceeded on their way, and on the road to Weatherford, witness states, he had a conversation with Clanton, in which Clanton confessed to him that he (Clanton) and Stony Broxon had killed Morris. The witness details this conversation as follows: “He told me he and Stony Broxon went to Grape creek, near Rice, and there Stony hitched his horse, and that they walked into town. They Went to Morris’s store, and Stony asked for some tobacco. Clanton thought he heard Morris inside, cocking his pistol. He said that he ordered him to throw up his hands and Morris would not do it; told him the second time to do it, and Clanton fired. Almost at the same time Stony threw his arm around Clanton and shot out the lamp which was in Morris’s hand. He said that as soon as Morris got in the store and lit the lamp he told him to throw up his hands, [156]*156and that ISTorris did not throw up his hands, and that he, Clan-ton, fired. That Stony Broxon immediately on his firing ran round him, or threw his hands round him, and fired, shooting the lamp out. That he and Broxon then ran. That they had an agreement to meet up the railroad if anything should happen and they should get separated. That' he failed to meet Broxon, and undertook to find his way back home, and got lost, and at daylight found,himself near Hr. Wright’s house on Mr. Sessions’s place.”
The evidence of this witness, if entitled to full credit, is unquestionably sufficient to sustain the conviction. We will concede, however, that he is an accomplice in the crime within the meaning of Article 741 of the Code of Criminal Procedure. Conceding this, the conviction cannot be sustained upon his testimony unless it is corroborated by other evidence tending to connect the defendant with the offense committed. We will now examine the evidence and ascertain whether or not' this witness’s statements have been corroborated to the extent required by the law:
1. The witness states that on the Monday evening of the murder Stony Broxon and the defendant Clanton left Broxon’s about the same time, and the defendant went off, on foot, in the direction of Rice. This statement, if true, is material, and tends remotely to connect the defendant with the murder. It starts him in the direction of the place where the murder was perpetrated, and on the same evening of the murder. This statement of the witness is fully corroborated by other witnesses.
2. The witness Guynes further states that when Clanton left Broxon’s on Monday evening he was armed with a pistol, and that he did not return to Broxon’s until next morning. This statement, if true, tends also to connect the defendant with the murder. It arms him with the kind of weapon with which the murder was committed, and shows his absence from his home during the entire night of the murder. This statement was fully corroborated. *
3. The witness states that Clanton, in attempting to return home from the scene of the murder, lost his way, and found himself next morning at daylight at Mr. Wright’s house on the Session place. This statement is corroborated by Wright, who testifies that very early the next morning after the murder the defendant came to his house. This is a circumstance, remote it is true, but nevertheless a circumstance tending to connect the [157]*157defendant with the murder. It shows him to be abroad, away from his home, at an unusual hour of the day, and apparently without having any business which called him to that place at that early hour.
4. The witness states that Clanton shot Norris with the pistol he, witness, had loaned him, which was a pistol of small calibre. In corroboration of this, it is proved that Norris was shot with a pistol of small calibre,—that the ball found in the store house was a small one,—that when defendant was arrested he was found to have a pistol of small calibre, exactly similar to the one described by the witness, and the ball found in the store house exactly fitted this pistol. The corresponding size of the ball and the wound with the pistol found upon defendant a few days after the murder, are circumstances tending directly to connect him with the murder.
We think we have sufficiently shown from the evidence set forth in the record that the testimony of the witness Guynes is corroborated to the extent required by the law. It is not required that the corroboration should be conclusive. It is sufficient if it tends to connect the defendant with the offense committed. (Nourse v. The State, 2 Texas Ct. App., 304; Davis v. The State, 2 Texas Ct. App., 588; Jones v. The State, 3 Texas Ct. App., 575; Hoyle v. The State, 4 Texas Ct. App., 239; Jones v. The State, 4 Texas Ct. App., 529; Myers v. The State, 7 Texas Ct. App., 640; Sims v. The State, 8 Texas Ct. App., 230; Harper v. The State, 11 Texas, 1.)
There are other facts in evidence, testified to by other witnesses than Guynes, which tend to establish the guilt of the defendant, but it is unnecessary that we should refer to them. The court in its charge to the jury submitted the evidence fairly and fully in accordance with the rules governing in such cases, and we are of the opinion that the verdict of the jury is well supported by the testimony.
The other questions presented in the record by the defendant, and which we have not discussed, we consider immaterial, or not errors; and hence we pass them without comment.
The judgment is affirmed.
Affirmed.
Opinion delivered November 11, 1882.