White, Presiding Judge,
At the trial of the case appellant saved fifteen bills of exception to the rulings of the court, all of which are incorporated in the record and each assigned for error. We do not propose to discuss them seriatim, but will select only those which present questions of a character likely to arise upon another trial, if not now disposed of.
I. As to dying declarations. . The witness Tooley testified that when he reached and entered the room in which the wounded man was, a short time after the shooting, the deceased said, “ Oh my God! Mr. Tooley, I am killed.” “I then asked him who shot him? He said, ‘ Jim Hunnicutt shot me.’ I then asked him where he was shot. He replied, ‘ I was inside of the saloon and Jim Hunnicutt was outside of it when he shot me.’ ”
It is insisted that these declarations were not made under circumstances which would admit them as dying declarations,— in a word the objection was that it was not made to appear, as is required by the statute: “1. That, at the time of making the declaration, the
party was conscious of approaching death, and believed there was no hope of recovering. 2. That the declaration was voluntarily made, and not through persuasion of any person. 3. That said declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement. 4. That he was of sane mind at the time of making the declaration.” (Code Crim. Proc., art. 748.)
The physician who attended the wounded and dying man does not appear to have heard the remark made by deceased to Tooley, [516]*516and he says in his evidence, “ He was dying, but I don’t know Avhether he knew he was dying or not. He lived, after I got there, probably an hour or less.”
Do the facts above stated show that the party was at the time “ conscious of approaching death, and believed there was no hope of recovering?” We think so. Ho words could under such circumstances have been more conclusive of “ the immediate apprehension of death” than his expression, “Oh my God! Mr. Tooley, I am killed.” In Edmondson v. The State, 41 Texas, 496, the party had been saying she was going to die for three months; her Avounds Avere mostly healed when she made the declaration, and “ for aught that appeared she may have believed that she Avas not going to die for weeks or months to come.” There was nothing said or done by the deceased, in this case, from the time of the shooting to his death, which indicated the slightest hope of recovery. (See Whart. Crim. Evid., §§ 276, 281, 282; Lister v. The State, 1 Texas Ct. App., 739; Warner v. The State, 9 Texas Ct. App., 619; Burrell v. The State, 18 Texas, 713.)
Mr. Greenleaf thus announces the rule with regard to such declarations: “It is essential to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made xmder a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction; whether it be proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant’s mind.” “ But,” continues the learned author, “ where it appears that the deceased at the time of the declaration had any expectation or hope of recovery, howeATer slight it may have been, and though death actually ensued an hour afterwards, the declaration is inadmissible. On the other hand, a belief that he will not recover is not itself sufficient unless there also be the prospect of almost immediate dissolution.” (1 Greenl. Evid., 13th ed., § 158.)
We are of opinion that the declarations in this instance come within the strict letter of the rule thus stated. It is clear that the declaration xvas voluntary and not made through persuasion. Was it “ made in answer to interrogatories calculated to lead the deceased to make any particular statement?” A part of the statement was in reply to interrogatories; but interrogatories are not prohibited,
[517]*517nor will they invalidate the declaration unless they be of a character “ calculated to lead the deceased to make the particular statement.” (Code Crim. Proc., art. 748, subdiv. 3.) Eo such questions were asked deceased by the witness Tooley; his questions neither suggested the answer nor any particular statement. There was no error in admitting the dying declaration.
II. When the prosecuting witness Polser was placed upon the stand, defendant objected to his competency as a witness, upon the ground that he had been legally convicted of a felony, and had served a full term thereunder in the State penitentiary. This was admitted by the prosecution, but they claimed that the competency of the witness had been restored by a full pardon of the Governor of the State, granted for the express purpose of enabling him to testify in behalf of the State on the trial of this case.
A number of questions are raised in connection with this pardon. In the first place it is said it is beyond the executive authority and prerogative to pardon a convict who has served out his term of imprisonment and been discharged therefrom; and that such pardon cannot restore his competency as a witness.
Under the Constitution of the United States the President is endowed with 16 power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” (Const. U. S., art. II, sec. II, subdiv. 1.) And our State Constitution confers upon the Governor, “ In all criminal cases except treason and impeachment,” the “ power after conviction to grant reprieves, commutations of punishment, and pardons.” (Canst. Texas, art. IV, sec. 11.) Amongst those expressly declared incompetent to testifjr by our statute are “ all persons who have been or may be convicted of felony in this State, or in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime of which he was convicted,” etc. (Code Crim. Proc., art. 730.)
The power of the executive of the State, under the State Constitution, to pardon offenses, is of the same general nature as that conferred upon the President of the United States by the Federal Constitution, except that the pardoning power of the President extends to the pardon of offenses before conviction, while the Governor can only pardon after conviction. In The United States v. Jones, 2 Wheeler’s Crim. Cases, 451, which is the leading case in point upon the question we are considering, it was held “ that a witness who has been convicted of felony, and suffered the judgment of the law by serving out the time for which he was sentenced in the State [518]*518prison, may any time afterwards be restored to competency by a pardon.” In the ninth volume of the Opinions of the Attorneys-General of the United States, p. 478, the Hon. Jeremiah Black, Attorney-General, in a letter to Lewis Cass, Secretary of State, says: “A person convicted of an offense against the laws of the United States which disfranchises him as a citizen can be restored to all the rights which he had before conviction, by a free and full pardon from the President of the United States. Such pardon may be given after he has suffered the other penalties incident to his conviction as well as before.”
Mr. Greenleaf says (speaking of the effect of a pardon in the removal of disability): “ Though it were granted after the prisoner had suffered the entire punishment awarded against him, yet it has been held sufficient to restore the competency of the witness, though he would in such case be entitled to very little credit. The rule that a pardon restores the competency and completely rehabilitates the party is limited to cases where the disability is a consequence of the judgment, according to the principles of the common law.” (1 Greenl. Ev. (13th ed.), §§ 377, 378.)
In the well considered case of Wells v. Foley, 15 Nev., 64 (S. C., 37 Amer. Rep., 458), it is held that a pardon may be granted after the offense is fully expiated.
Mr. Bishop says: “ By the general doctrine, when guilt is incurred, it can be remitted before judicial proceedings are undertaken, or during their pendency, or after their termination, or after the punishment has been fully endured. Tet by express words in the Constitutions of considerable numbers of our States ” (and this is the case in Texas), “the pardoning power is forbidden to act before conviction.” (1 Bish. Crim. Law, 7th ed., section 903.)
From these authorities we think it clear that the Governor had . authority to issue the pardon, though the party had expiated his crime by serving a full term in the penitentiary.
But it is said that under the peculiar terms of our statute (Code Crim. Proc., art. 730, subdiv. 5), though a convict may be pardoned, he can only be “legally pardoned for the crime' for which he has been convicted; ” and that, whilst a pardon pending his imprisonment would both expiate the crime and restore his competency as a witness, an d in fact restore all of his disabilities incident to the crime, yet the pardon simply of the crime for which he has been convicted, if granted after he has served his term of imprisonment, would only relieve him of the infamy of the crime per se charged against him, and would not restore Ms competency as a witness.
[519]*519Mr. Bishop says, “ A pardon is a remission of guilt.” (1 Bish. Grim. Law, § 898.) But the general rule with regard to a full pardon seems to be that it “ is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” (4 Blackst. Com., 402. See, also, Greenleaf’s Ev., § 377; People v. Pease, 3 Johns. Cases, 333; Wood v. Fitzgerald, 3 Oreg., 568; In re Deming, 10 Johns., 232; State v. Baptiste, 26 La. Ann., 136; Ex parte Hunt, 5 Eng. (Ark,), 284; Hester v. The Commonwealth, 85 Penn. St., 154; 2 Hawk. P. C., 547, and cases there cited; 1 Phill. Ev., 21; 1 Gilb. Ev., 259.)
And Mr. Justice Field, in Osborn v. The United States, speaks of a pardon as “ releasing the offense, and obliterating it in legal contemplation.” (91 U. S., 474.) Hawkins states the effect of a pardon thus: “I take it to be settled at this day,” he observes, “that the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy of all other consequences of his crime that he may not only have an action for scandal in calling him traitor or felon, after the time of the pardon, but may also be a good witness notwithstanding the attainder or conviction ; because the pardon makes him, as it were, a new man.” (2 Hawkins’s P. C., p. 547, § 48.)
And Mr. Bishop says: “ A full pardon absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided.
Among the collateral consequences of an attainder or final sentence against the prisoner removed' by pardon is the incapacity to be a witness. Yet only a full pardon has this effect.” (1 Bish. Crim. Law, §§916, 917; Edwards v. Commonwealth, Va. Ct. App., 1884; 5 Crim. Law Mag., 308.)
Our conclusions from the authorities are that a full pardon after a prisoner has served his full term in the penitentiary has the same effect as would have had a pardon granted him during his term of imprisonment and before its completion, and that such pardon restores fully his competency as a witness.
But again it was objected to the validity of the pardon proposed to be proven, that it had never been delivered'to or accepted by the grantee (the witness), the rule being, as insisted, that “ a pardon, to be valid, must be delivered, and, like a deed of land, accepted by the grantee. Where there is no acceptance, it is void.” (1 Bish. Crim. Law, § 907.)
[520]*520Upon request of the county attorney the pardon had been sent to him by the Governor, and he had used it as a predicate upon which to base the right of the witness to testify on the habeas corpus proceedings previously had in this case. And under the authority of the pardon, the witness had testified at the habeas corpus trial. It had never been repudiated by the witness; on the contrary, he had exercised his right, under it, to testify at the habeas corpus trial. The correct rule is that as laid down in Ex parte Powell, 2 Ala. Law-Journal, February 18, 1884, p. 408, wherein it was held: “1st. A pardon, in order to be complete, must, in contemplation of law, be delivered and accepted.” 2d. “The principles applicable to the delivery of a pardon and an ordinary deed must be considered analogous, and in either case its delivery is complete when the grantor has parted with his entire control or dominion over the instrument, with the intention that it shall pass to the grantee or obligee, and the latter assents to it either by himself or agent; and the delivery to a stranger may be made effectual, in ordinary cases, by an appropriate expression of the intention with which the delivery is made, at the time of the delivery, although no formal words or acts are necessary.” (Id.)
We are of opinion that the circumstances show a delivery by the Governor and such assent on the part of the witness as amounts to a delivery and acceptance in law.
But again, with reference to the pardon, it appears that the same had been lost or mislaid by the county attorney, who swore that he had made diligent search for the same and could not find it. A sufficient predicate was thus laid for the introduction of secondary evidence with relation to it. The county attorney proposed to prove the contents by paroi. This was objected to, by defendant, upon the ground that a charter of pardon, where the original was lost, could only be proven by a certified copy, under the great seal of the State. This proposition is sustained by authorities as the law aforetime obtained, even in our own State. (1 Greenleaf Ev., sec. 377; Schell v. The State, 2 Texas Ct. App., 30; Cooper v. The State, 7 Texas Ct. App., 195.)
It is contended, however, that such cannot be the law now, because we have no statute requiring the registration of pardons in any of the offices of the State government. Whilst our statute does not, in express terms, require that the Secretary of State shall keé’p a “ record book,” it does expressly require that “ he shall keep a fair register ” of all the official acts of the Governor. (Rev. Stats., art. 720.) This, we think, is tantamount to a requirement that he should keep a record of all such official acts. And such being the [521]*521case, a certified copy or exemplification from his register or record would be the proper evidence of such lost documents, before resort could be had, if at all, to paroi testimony. We think that this objection to proof by paroi was well taken in the absence of any showing that an exemplification or certified copy of the same could not be obtained from the office of the Secretary of State.
There is another question relating to this pardon, which it becomes necessary that we should notice. It is agreed on all hands that the pardon, as granted by the Governor, misstated or stated incorrectly the date of the judgment wherein the witness had been convicted of the felony for which he was punished by imprisonment in the penitentiary. The rule is: “ In the absence of fraud, a pardon will be good, though it states the date of the conviction incorrectly, if it was intended to cover and does cover the particular offense.” (1 Bishop’s Crim. Law, § 906.) It is not claimed that the pardon misrecited the offense, which, in effect, would have rendered it inoperative (1 Whart. Crim. Law, 5th ed., § 766, and note), but the date of the conviction only was incorrectly stated.
To support the pardon, the prosecution proved, by the records of the court, and by the prosecuting officer and the clerk, that, so far as they knew or could ascertain, the witness had been convicted and sentenced to the penitentiary in but one case, which was for theft of a steer,— that being the same offense mentioned in the executive pardon. The prosecution also called the witness Polser to the stand, and he was examined on his voir dire by the court over objection by defendant,— the objection being that, until the witness was rendered competent by a valid pardon, he was incompetent for any purpose. And the witness stated, in answer to the questions asked by the court, that he had never been in the penitentiary but once.
The court did not err in overruling the objection, because the statute in terms provides that “ the court may, upon suggestion made, or of its own option, interrogate a person who is offered as a witness, for the purpose of ascertaining whether he is competent to testify,” etc. (Code Crim. Proc., art. 732.)
III. The charge of the court is complained of, and assigned for error, in several particulars. It is claimed that it was fatal error of omission, in the charge, in that it did not instruct the jury with regard to the necessity of the corroboration of the witness Polser in case they should find said witness to be a partioeps criminis in the homicide. Our statute which requires the corroboration of accomplice testimony (Code Crim. Proc., art. 741) has always been held to [522]*522include principals and accessories and ijl characters of particeps criminis. (Clark’s Crim. Law of Texas, p. 552 and note 224.)
Whilst the record does not show cc aclusively that the witness Polser was either a principal, accompli) j or accessory, yet it does show a state of facts which might tend strongly to establish that he was an accessory, and was endeavoring by his acts, declarations and conduct after the homicide to screen a' id shield the defendant, and, by assuming to be the guilty party hi nself, thereby enable the defendant to evade arrest or trial for t je offense. (Penal Code, art. 86.) In view of this evidence, the c iurt should have charged the law with regard to the necessity of < orroboration. (Howell v. The State, 16 Texas Ct. App., 93; Winn v. The State, 15 Texas Ct. App., 169; Powell v. The State, 15 Texas Ct. App., 441; Dunn v. The State, 15 Texas Ct. App., 560; Zoll coffer v. The State, 16 Texas Ct. App., 312.)
An instruction upon this subject was a part of the law of the case, made so by the facts, and should have been given in charge by the court whether requested or not; and the failure to give it was a substantial and fatal error.
Again: there was testimony, offered in behalf of defendant, to prove an alibi. There is no charge of the court upon this subject. An exception was reserved by defendant to this omission of the charge. This error was also substantial and is fatal to the sufficiency of the charge. (McAfee v. The State, 17 Texas Ct. App., 131, and authorities cited; Ninnon v. The State, 17 Texas Ct. App., 650.)
Again, with regard to homicide permitted by law, the court erred in restricting it solely to the purpose of preventing the offense of murder. A person, when attacked, need not resort to other means than killing to protect himself where the assault by the deceased indicates an intent either to murder, maim or inflict serious bodily injury, but may kill at once, and "with the most effective means, without resort to other means for the prevention of the injury. (Kendall v. The State, 8 Texas Ct. App., 569; Ainsworth v. The State, Id., 532; Branch v. The State, 15 Texas Ct. App., 96; Hill v. The State, 10 Texas Ct. App., 618; Sterling v. The State, 15 Texas Ct. App., 249.)
There are other objections to the charge, but the ones we have noticed are the most material. The case was not one of wholly circumstantial evidence, and the court was not bound to charge the law with regard to that character of testimony.
Certain remarks of the county attorney were excepted to. Vituperation of parties and witnesses, when unwarranted by the evidence, [523]*523is a practice too frequently indulged in by counsel, and one which should be promptly suppressed by the trial courts, especially in cases involving life or liberty. And it is as equally reprehensible for counsel to go outside the record to argue and discuss facts to the jury not in evidence and injurious to the defendants. (Sterling v. The State, 15 Texas Ct. App., 249; Crawford v. The State, Id., 501, and authorities cited.)
It is claimed as error that the jury, while trying the case, were permitted to read the Dallas Herald newspaper, which paper purported to give the proceedings had on the trial of the case, and which, it is averred, contained excluded testimony, and testimony incorrectly stated. We have before us in the record, incorporated in a bill of exceptions, the objectionable portions of the newspaper complained of. In Walker and Black v. The State, 37 Texas, 367, it was held that “ allowing jurors in a criminal case to have access to newspapers containing imperfect or incorrect accounts of the trial will vitiate their verdict.” See, also, Wharton’s Crim. Plead. & Pro., 829, 830.) Our statute expressly prohibits any person conversing with a juror after he has been impaneled (Code Crim. Proc., art. 690), and even the officer in charge is not permitted to converse with them about the case, nor to converse about it with any one else in the presence of any one of them. (Code Crim. Proc., art. 692.)
The whole object and purpose of our law is to give a party accused of crime a fair and impartial trial. To secure this, every provision seems to have for its object the inviolability of the jury from extraneous and improper influences. They should decide the case alone from the evidence allowed by the court and given by the witnesses in person. To allow them to read newspaper reports of a case they are trying, when such reports are, or may be, incorrect, might operate the same injurious consequences as though they were permitted to talk with outside parties directly about the case. Such practices should not be tolerated.
For the errors we have pointed out and discussed, the judgment of the court below is reversed and the cause is remanded for a new trial.
Reversed cmd remanded.
[Opinion delivered June 17, 1885.]