Willson, Judge.
On the afternoon of December 25,1884, Sidney Ann Dykes was shot and killed near the residence of the defendant Ben Lane, in San Augustine county. By the verdict and judgment in this case it is found and adjudged that the defendant Ben Lane committed the homicide, and that such homicide was murder in the first degree, and of so atrocious a character as to demand the punishment of death.
Defendant’s counsel, in an able and ingenious brief and written argument, insists that the conviction is not supported by the evidence. In considering this question, we will first notice the circumstantial evidence adduced on the trial, grouping in a general way the inculpatory facts,, without reciting the testimony in detail.
[68]*681. It was sufficiently proved that a motive existed to actuate the defendant in the commission of the murder. He had been indicted by the grand jury of San Augustine county for the crimes "of rape, false imprisonment, and falsely personating an officer. These indictments were pending against him, and the deceased was a witness in behalf of the State in all three of the cases. He knew that she was a witness against him in these prosecutions, and was heard to say that she would never appear against him as a witness on the trials.
2. He had the opportunity to commit the murder, and the instrument "with which to commit it. There was an effort made on the trial 'by his counsel to prove an alibi, but, when the testimony is closely scrutinized and analyzed, it will appear that this defense was not established. The exact hour of the homicide is not fixed by any of the witnesses, but upon comparing the statements of all the witnesses who testified as to the time, the most reasonable conclusion that we can arrive at is that it occurred soon after 3 o’clock. At precisely 1 o’clock the defendant left Anderson’s house, nine miles distant by the road, from the scene of the killing. By another way, through the woods, the distance was about eight miles. He was on horseback, and left Anderson’s in a trot, going in the direction of his home. Three-fourths of a mile from Anderson’s, he was seen by Bebecca Bryant, at whose house he stopped and remained about fifteen minutes. This was between 1 and 2 o’clock. He left there in a trot, going in the direction of home. On the same evening about 4 o’clock, Mrs. Seaborn Bryant, who resided about three miles from Bebecca Bryant, and about five miles from defendant, saw him pass her house, coming from the direction of Bebecca Bryant’s. After passing her house he took a right hand road which did not lead in the direction of defendant’s house, nor in the direction of the residence of Sam Williams. He was traveling in a hurry, and his horse was covered with sweat. He was next seen at Sam Williams’s residence when the sun was about one-half hour high. The sun set on that day at thirty-sbven minutes after 4 o’clock. It is about four miles from defendant’s home to Sam Williams’s.
Now, we see from this statement of the evidence that at not later than half after 1 o’clock the defendant left Bebecca Bryant’s, going in the direction of home. Premising that deceased was killed at half-past 3 o’clock, he had two hours’ time within which to ride less than nine miles and commit the murder. It would not require any rapid riding to enable him to accomplish this distance in one hour and a half, thus leaving him half an hour to perpetrate the murder, and a little more than half an hour after the murder to [69]*69ride to Sam Williams’s, going by the way of Seaborn Bryant’s. It was neither impossible nor improbable that he could have committed the murder at 3 or half-past 3 o’clock, and still have been at the various places where he was seen on that day, and at the times stated by the witnesses. When seen by Mrs. Seaborn Bryant, at about 4 o’clock, he may have been just from the scene of the murder, and on his way to Sam Williams’s, when he was next seen. It was shown that notwithstanding he took a right hand road after passing Mrs. Seaborn Bryant’s, there was a road leading from that road to Sam Williams’s. It is not unreasonable to suppose that he went out of his way to pass Seaborn Bryant’s that he might be seen coming, not from the direction of his home, but from the direction of Anderson's, where he had gone in the morning; thus providing evidence in support of his defense of an aliii. It is not reasonable to suppose that he had been two hours or more traveling a distance of three miles, which must have been the case if he was on his return trip from Anderson’s when Mrs. Seaborn Bryant saw him. We must conclude from this evidence that he had the opportunity to commit the murder. During all this time he was armed with a double-barreled shot-gun, which he had borrowed from his brother a few days before. Deceased was shot with nine buck shot, and buck shot are usually discharged from a shot-gun.
3. The tracks of a horse were traced from the front of defendant’s house to the dead body of deceased, and from thence several hundred yards in the direction of Sam Williams’s.
4. On the morning after the murder, and before the jury of inquest had completed their investigation, the defendant left his home and family, and was not seen any more in that neighborhood for more than a month, and not until he was arrested upon this charge. This is the conclusion arrived at by us from the record, though it does not definitely appear what became of the defendant after the murder, or when and where he was arrested. That he disappeared from his home on the morning after the murder is an established fact, and no witness but his wife testifies to having seen him after-wards until his arrest. She stated that she did not see him for more than a week after he left home, but she does not state when or where she next saw him, or the cause of his absence from home.
In addition to the foregoing affirmative inculpatory circumstances, there are some of a negative character which are not unworthy of consideration. There is no evidence that any one but the defendant had a motive to kill the deceased. It was in proof that one [70]*70Dubose had, a few days before her death, assaulted and beat her, but none of the circumstances of such assault are shown, nor is it shown that this man Dubose could possibly have perpetrated the murder.
Again: it was attempted by the unsupported testimony of the defendant’s wife to cast suspicion upon Seaborn Bryant as the murderer. This attempt signally failed, it being proved that Bryant was at a neighbor’s house at the time the murder was committed, and could not have participated in it. There was no person at defendant’s house, besides himself, on the day of the homicide but women and children, and they had no gun with which to commit the murder, even if they had been capable of committing it. His wife testified on the trial that she was in the house when the gun fired; that she looked and saw a man with a gun fleeing on foot from the place where the gun fired, but did not recognize the person. He was a tall man, dressed in dark clothes. The tracks of this fleeing man are not discovered by any witness, nor is there any evidence whatever adduced, which in the least even tends to corroborate this statement of the defendant’s wife.
To say the least, the circumstantial evidence before us points directly and cogently to the defendant as the perpetrator of the murder.
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Willson, Judge.
On the afternoon of December 25,1884, Sidney Ann Dykes was shot and killed near the residence of the defendant Ben Lane, in San Augustine county. By the verdict and judgment in this case it is found and adjudged that the defendant Ben Lane committed the homicide, and that such homicide was murder in the first degree, and of so atrocious a character as to demand the punishment of death.
Defendant’s counsel, in an able and ingenious brief and written argument, insists that the conviction is not supported by the evidence. In considering this question, we will first notice the circumstantial evidence adduced on the trial, grouping in a general way the inculpatory facts,, without reciting the testimony in detail.
[68]*681. It was sufficiently proved that a motive existed to actuate the defendant in the commission of the murder. He had been indicted by the grand jury of San Augustine county for the crimes "of rape, false imprisonment, and falsely personating an officer. These indictments were pending against him, and the deceased was a witness in behalf of the State in all three of the cases. He knew that she was a witness against him in these prosecutions, and was heard to say that she would never appear against him as a witness on the trials.
2. He had the opportunity to commit the murder, and the instrument "with which to commit it. There was an effort made on the trial 'by his counsel to prove an alibi, but, when the testimony is closely scrutinized and analyzed, it will appear that this defense was not established. The exact hour of the homicide is not fixed by any of the witnesses, but upon comparing the statements of all the witnesses who testified as to the time, the most reasonable conclusion that we can arrive at is that it occurred soon after 3 o’clock. At precisely 1 o’clock the defendant left Anderson’s house, nine miles distant by the road, from the scene of the killing. By another way, through the woods, the distance was about eight miles. He was on horseback, and left Anderson’s in a trot, going in the direction of his home. Three-fourths of a mile from Anderson’s, he was seen by Bebecca Bryant, at whose house he stopped and remained about fifteen minutes. This was between 1 and 2 o’clock. He left there in a trot, going in the direction of home. On the same evening about 4 o’clock, Mrs. Seaborn Bryant, who resided about three miles from Bebecca Bryant, and about five miles from defendant, saw him pass her house, coming from the direction of Bebecca Bryant’s. After passing her house he took a right hand road which did not lead in the direction of defendant’s house, nor in the direction of the residence of Sam Williams. He was traveling in a hurry, and his horse was covered with sweat. He was next seen at Sam Williams’s residence when the sun was about one-half hour high. The sun set on that day at thirty-sbven minutes after 4 o’clock. It is about four miles from defendant’s home to Sam Williams’s.
Now, we see from this statement of the evidence that at not later than half after 1 o’clock the defendant left Bebecca Bryant’s, going in the direction of home. Premising that deceased was killed at half-past 3 o’clock, he had two hours’ time within which to ride less than nine miles and commit the murder. It would not require any rapid riding to enable him to accomplish this distance in one hour and a half, thus leaving him half an hour to perpetrate the murder, and a little more than half an hour after the murder to [69]*69ride to Sam Williams’s, going by the way of Seaborn Bryant’s. It was neither impossible nor improbable that he could have committed the murder at 3 or half-past 3 o’clock, and still have been at the various places where he was seen on that day, and at the times stated by the witnesses. When seen by Mrs. Seaborn Bryant, at about 4 o’clock, he may have been just from the scene of the murder, and on his way to Sam Williams’s, when he was next seen. It was shown that notwithstanding he took a right hand road after passing Mrs. Seaborn Bryant’s, there was a road leading from that road to Sam Williams’s. It is not unreasonable to suppose that he went out of his way to pass Seaborn Bryant’s that he might be seen coming, not from the direction of his home, but from the direction of Anderson's, where he had gone in the morning; thus providing evidence in support of his defense of an aliii. It is not reasonable to suppose that he had been two hours or more traveling a distance of three miles, which must have been the case if he was on his return trip from Anderson’s when Mrs. Seaborn Bryant saw him. We must conclude from this evidence that he had the opportunity to commit the murder. During all this time he was armed with a double-barreled shot-gun, which he had borrowed from his brother a few days before. Deceased was shot with nine buck shot, and buck shot are usually discharged from a shot-gun.
3. The tracks of a horse were traced from the front of defendant’s house to the dead body of deceased, and from thence several hundred yards in the direction of Sam Williams’s.
4. On the morning after the murder, and before the jury of inquest had completed their investigation, the defendant left his home and family, and was not seen any more in that neighborhood for more than a month, and not until he was arrested upon this charge. This is the conclusion arrived at by us from the record, though it does not definitely appear what became of the defendant after the murder, or when and where he was arrested. That he disappeared from his home on the morning after the murder is an established fact, and no witness but his wife testifies to having seen him after-wards until his arrest. She stated that she did not see him for more than a week after he left home, but she does not state when or where she next saw him, or the cause of his absence from home.
In addition to the foregoing affirmative inculpatory circumstances, there are some of a negative character which are not unworthy of consideration. There is no evidence that any one but the defendant had a motive to kill the deceased. It was in proof that one [70]*70Dubose had, a few days before her death, assaulted and beat her, but none of the circumstances of such assault are shown, nor is it shown that this man Dubose could possibly have perpetrated the murder.
Again: it was attempted by the unsupported testimony of the defendant’s wife to cast suspicion upon Seaborn Bryant as the murderer. This attempt signally failed, it being proved that Bryant was at a neighbor’s house at the time the murder was committed, and could not have participated in it. There was no person at defendant’s house, besides himself, on the day of the homicide but women and children, and they had no gun with which to commit the murder, even if they had been capable of committing it. His wife testified on the trial that she was in the house when the gun fired; that she looked and saw a man with a gun fleeing on foot from the place where the gun fired, but did not recognize the person. He was a tall man, dressed in dark clothes. The tracks of this fleeing man are not discovered by any witness, nor is there any evidence whatever adduced, which in the least even tends to corroborate this statement of the defendant’s wife.
To say the least, the circumstantial evidence before us points directly and cogently to the defendant as the perpetrator of the murder. It is not necessary that we should determine that this evidence alone is sufficient to sustain the conviction, because, in addition thereto, the witness Oliver Gillespie testified directly and positively that he saw the defendant shoot and kill the deceased. We gather from the record, and from the brief of counsel for the defendant, that this witness is a mere child, and is illiterate and ignorant. It is also shown that, when placed upon the witness stand on the examining trial, he stated that he was not present when the killing occurred, but that he was down in the field. Counsel for the defendant argue that the testimony of this witness is unworthy of belief, and that it should be entirely disregarded by this court in passing upon the sufficiency of the evidence. This court does not determine the credibility of the witnesses who testify in the trial court, or the weight to be given to the testimony. It is the exclusive province of the jury to decide these matters. “ When the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside, unless it clearly appears to be wrong.” ( Walker v. The State, 14 Texas Ct. App., 609, and cases there cited.) The testimony of the defendant’s wife and daughter conflicts materially with that [71]*71of the witness Gillespie. It was for the jury to determine the conflict, and by their verdict declare the truth of the issue. In our opinion the jury have performed this duty faithfully and intelligently. The witness Gillespie, although an ignorant child, de tailed the facts of this horrible murder clearly, connectedly and minutely. His statement, upon its face, bears the impress of truth, coming as it does from an inexperienced boy. An ignorant child would not be likely to fabricate and tell so consistent and reasonable a story.
It is further to be remarked that the testimony of Gillespie is singularly corroborated by physical facts testified to by other witnesses. He stated that the defendant shot the deceased from his back gallery, she being at a distance of ten or fifteen feet from him, inside the yard fence, and standing with her right side exposed to defendant, and with her baby in her arms. It was proved that the gallery where Gillespie said the defendant stood when he fired the shot was three feet from the ground; that defendant was six feet in height, and that deceased was about five feet six inches in height. The shot holes in the body of deceased ranged slightly downward, and the nine shot holes were within a space which could have been covered by a man’s hand. Thus it will be seen that the range of the shot in the body corresponds with the testimony of Gillespie as to the position of the parties at the instant the shot was fired.
The shot holes were in the right side of deceased’s body. Gillespie testified that her right side was exposed to the defendant when he fired. Gillespie made the distance between defendant and deceased some ten or fifteen feet. Dr. Wallace, an expert in the use and knowledge of shot-guns, as well as an expert physician, states that the small space occupied by the nine shot holes in the body indicates that the person firing the gun was not at a greater distance from the deceased than ten or fifteen feet. Gillespie says that when the gun fired the deceased fell and died where she was standing. Dr. Wallace testified that the wounds inflicted upon her would produce instant death. Gillespie testified that defendant and his wife carried the dead body about thirty steps outside the little pasture fence and laid it where it was found by the jury of inquest. This was corroborated by the fact that the pasture through which he says the body was carried, was grown up with cockle-burr weeds, and cockle- burrs were found in deceased’s hair, but there were no cockle-burrs growing outside the pasture where her dead body was found. Gillespie stated that after defendant had deposited the body outside the pasture, he called to witness to [72]*72bring his horse, and witness unhitched the horse at the front yard and led him around to the back of the pasture to the dead body, and defendant mounted the horse and rode off, saying that he was going to Sam Williams’s. This was corroborated by the fact that the tracks of a horse were traced from the front yard fence around to the back of the pasture, near to the dead body, and from thence in the direction of Sam Williams’s. Gillespie stated that soon after the defendant left, his wife had her horse caught, and she rode away also, saying that she was going to Sam Williams’s. Williams says that soon after defendant arrived at his house, defendant’s wife came, and announced the death of the deceased.
We have no hesitation in concluding from the entire evidence in the case that the jury were fully warranted in finding that the defendant fired the fatal shot. They could not reasonably have found otherwise. True it is, that the defendant’s wife and daughter testify that the defendant was not present and did not commit the homicide. But, considering their relation to.the defendant, and their contradictory and improbable statements, not only unsupported, but refuted by facts proved by disinterested witnesses, the jury were well warranted in disregarding their testimony.
As to proof of express malice, we think it is ample. Defendant whipped the deceásed the day before he killed her, and according to Anderson’s testimony he was disappointed, and displeased at her on the day of the homicide, when he ascertained that she had not instituted a prosecution against Dubose for assaulting her. He left Anderson’s saying that he would have her to make the complaint against Dubose before 8 o’clock that night. The testimony of Gillespie shows that the defendant shot the deceased as deliberately as he would have shot a beast. He had her called to him, and when she presented herself with her baby in her arms, he took deliberate aim and fired the fatal shot. It was a sedate, cruel, brutal murder, the manner of its commission evincing conclusively a heart fatally bent on mischief, and regardless of social duty; a fiendish malignity and cowardly spirit that the wild savage of the plains would be ashamed to display.
As to the charge of the court, we find no material error in it. There was no evidence raising the issue of murder in the second degree, and the court very properly declined to submit that issue to the jury.
In the trial court, and in this court, the defendant has been faithfully represented by able counsel. He has, as shown by the record, had a fair and impartial trial, and although the extreme penalty of [73]*73the law has been assessed against him, the atrocity and cold-blooded cruelty of his crime justifies the punishment adjudged against him. The judgment is in all things affirmed.
Affirmed. .
- [Opinion delivered October 21,1885.]