White, P. J.
John Lanham, the appellant in this case, was indicted in the District Court of Bexar County, at the October term, a. d. 1878, for the murder of one Georgie Drake. The deed was alleged to have been committed on the third day of August, 1878. On his trial, which took place on the twenty-third day of May, 1879, he was convicted of murder of the first degree, with his punishment affixed at death by hanging.
A jurisdictional question was raised in the motion to arrest the judgment, on the ground that “the act of the Sixteenth Legislature changing the times of holding the .courts in the Twenty-second Judicial District did not authorize the holding of a term of the District Court in Bexar County between the eighteenth day of April and the twenty-fourth day of May, A. D. 1879 ; and that this law is the only one regulating the times of holding courts in this district, all others being in conflict with and repealed by it.” Acts 16th Leg., Gen. Laws, p. 106.
This identical question was raised in the case of Graves v. The State, 6 Texas Ct. App. 228, which was a case appealed from the District Court of Bexar County, and it was there held that the antecedent act of 1876, prescribing the times and terms of holding the District Courts in the Twenty-second District (Gen. Laws 15th Leg., p. 11), controlled and regulated the subject, its provisions being oper[137]*137ative until the act of 1879 went into effect. Agreeably to the law as announced, and so well supported by authority, in the Graves case, the court did not err in overruling defendant’s motion in arrest of judgment.
It is urgently insisted in the brief of counsel for appellant that the court erred in refusing to give in charge to the jury a'special instruction in the following language: “ The jury, in framing their verdict, will consider all evidence not excluded in-the progress of this trial, except such evidence as implies that better evidence existed and is withheld or not accounted for; and in this connection it is proper that the jury consider whether the evidence adduced by other witnesses implies .that the party first assailed by defendant would have been competent to give better evidence than that adduced.” Several objections suggest themselves to this instruction, which in our judgment fully sustain the action of the court. Two only will be noticed. First, it sought to invade the province of the jury by telling them what evidence they should consider and what reject from their consideration; secondly, if not a direct charge upon the weight of evidence, .it was certainly calculated to impress upon the jury that in the opinion of the court the proof adduced was not the best and most satisfactory of which the case was susceptible, and that in consequence the court doubted its sufficiency to establish the crime alleged.
Objections to the admissibility of evidence cannot be raised by asking instructions to the jury. Nalle v. Gates, 20 Texas, 315. In practice, the proper mode of reaching the matter sought to be attained would have been, when the evidence was proposed, to have objected to it; or, after it was adduced, to have moved to exclude it on the ground that it presupposed the existence of better testimony which was withheld or not accounted for. Then, had the court overruled the motion, a bill of exceptions reserved to the action would have submitted the subject appropriately for revision. Where this has not been done, the duty of this [138]*138court in examining the record will be to see that the conviction is sustained by a sufficient amount of legal and competent testimony. Correctness of the rules of evidence as declared in Porter v. The State, 1 Texas Ct. App. 394, and Barnell v. The State, 5 Texas Ct. App. 115, cited by counsel, is not doubted, and in a proper case and under proper circumstances, as in those cases, would, where it bad not been adduced, require a reversal of the judgment for want of the best evidence'. In the case we are considering the rule does not apply, under the facts established. Here the whole transaction occurred in the presence and hearing of the witnesses who have testified. They Avere persumably in a better position to see, hear, and recollect everything that was said and done by the parties actively engaged than the parties themselves, who were at the time assailed, fired upon, and fleeing from the defendant. It is unreasonable to suppose that these latter parties, in the excitement incident to their situation, could or would see, hear, and recollect more distinctly what was said and done than third parties who were only spectators of, and not participants in, the thrilling events.
A single bill of exceptions appears in the record, and that was saved to the ruling of the court in refusing to permit the witness Ryan to ansAver a question propounded to him by defendant’s counsel, the question being, “What was the opinion of the witness in regard to the condition of defendant on the day of the killing.” In signing this bill the judge says, in explanation: “The witness Hunt Avas required, before giving any opinion, to give all of the particulars of his intercourse with the defendant on the day of the shooting, which he did,—minutely and in detail stating where they went, what they did, and what they drank ; and then he stated the condition of defendant according to his opinion, as will be seen by the statement of facts in the cause.” We take it that in writing the above the judge has by clerical error inserted the name of Hunt instead of Ryan. [139]*139This presumption is borne out by a reference to Ryan’s testimony, who says : “I know defendant, and saw him on the day that Georgie Drake was killed ; I saw him take a great many drinks, and I drank with him ; he was under the influence of liquor; he was not in his usual frame of mind, but was excited and angry.” It is apparent from this extract from the testimony of this witness that he was not only not prohibited from expressing his opinion as to the condition of the accused, but that he has done so, it seems, as fully as he was capable of doing. One of the theories of the defence was that defendant, when the homicide was committed, was intoxicated to an extent that he was irresponsible for his actions. Every opportunity to make it good, if possible, was, it appears to us, afforded defendant. In addition thereto, defendant’s counsel framed and submitted to the court special instructions with regard to this defence, which were given in charge to the jury without change or modification by the court. No error is made to appear in this connection.
Some objections are urged to portions of the charge of the court. These we have considered attentively, and find them untenable. In its presentation of the law the charge is fully sustained by precedent, and was directly and pertinently applicable to the particular facts developed in the evidence.
Another supposed error grows out of the judgment rendered in the case. After the usual formulary, including a copy of the verdict, the judgment proceeds: ‘ ‘ Whereupon it is ordered, adjudged, and decreed by the court that the defendant, John Lanham, be hung by the neck until he is dead ; that he now be remanded to the county jail, and that he be there securely kept by the sheriff of Bexar County until the execution of this judgment, hereafter to be pronounced by the sentence of this court. It is further ordered by the court that the State of Texas do have and recover of and from the said defendant all costs herein [140]*140expended.”
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White, P. J.
John Lanham, the appellant in this case, was indicted in the District Court of Bexar County, at the October term, a. d. 1878, for the murder of one Georgie Drake. The deed was alleged to have been committed on the third day of August, 1878. On his trial, which took place on the twenty-third day of May, 1879, he was convicted of murder of the first degree, with his punishment affixed at death by hanging.
A jurisdictional question was raised in the motion to arrest the judgment, on the ground that “the act of the Sixteenth Legislature changing the times of holding the .courts in the Twenty-second Judicial District did not authorize the holding of a term of the District Court in Bexar County between the eighteenth day of April and the twenty-fourth day of May, A. D. 1879 ; and that this law is the only one regulating the times of holding courts in this district, all others being in conflict with and repealed by it.” Acts 16th Leg., Gen. Laws, p. 106.
This identical question was raised in the case of Graves v. The State, 6 Texas Ct. App. 228, which was a case appealed from the District Court of Bexar County, and it was there held that the antecedent act of 1876, prescribing the times and terms of holding the District Courts in the Twenty-second District (Gen. Laws 15th Leg., p. 11), controlled and regulated the subject, its provisions being oper[137]*137ative until the act of 1879 went into effect. Agreeably to the law as announced, and so well supported by authority, in the Graves case, the court did not err in overruling defendant’s motion in arrest of judgment.
It is urgently insisted in the brief of counsel for appellant that the court erred in refusing to give in charge to the jury a'special instruction in the following language: “ The jury, in framing their verdict, will consider all evidence not excluded in-the progress of this trial, except such evidence as implies that better evidence existed and is withheld or not accounted for; and in this connection it is proper that the jury consider whether the evidence adduced by other witnesses implies .that the party first assailed by defendant would have been competent to give better evidence than that adduced.” Several objections suggest themselves to this instruction, which in our judgment fully sustain the action of the court. Two only will be noticed. First, it sought to invade the province of the jury by telling them what evidence they should consider and what reject from their consideration; secondly, if not a direct charge upon the weight of evidence, .it was certainly calculated to impress upon the jury that in the opinion of the court the proof adduced was not the best and most satisfactory of which the case was susceptible, and that in consequence the court doubted its sufficiency to establish the crime alleged.
Objections to the admissibility of evidence cannot be raised by asking instructions to the jury. Nalle v. Gates, 20 Texas, 315. In practice, the proper mode of reaching the matter sought to be attained would have been, when the evidence was proposed, to have objected to it; or, after it was adduced, to have moved to exclude it on the ground that it presupposed the existence of better testimony which was withheld or not accounted for. Then, had the court overruled the motion, a bill of exceptions reserved to the action would have submitted the subject appropriately for revision. Where this has not been done, the duty of this [138]*138court in examining the record will be to see that the conviction is sustained by a sufficient amount of legal and competent testimony. Correctness of the rules of evidence as declared in Porter v. The State, 1 Texas Ct. App. 394, and Barnell v. The State, 5 Texas Ct. App. 115, cited by counsel, is not doubted, and in a proper case and under proper circumstances, as in those cases, would, where it bad not been adduced, require a reversal of the judgment for want of the best evidence'. In the case we are considering the rule does not apply, under the facts established. Here the whole transaction occurred in the presence and hearing of the witnesses who have testified. They Avere persumably in a better position to see, hear, and recollect everything that was said and done by the parties actively engaged than the parties themselves, who were at the time assailed, fired upon, and fleeing from the defendant. It is unreasonable to suppose that these latter parties, in the excitement incident to their situation, could or would see, hear, and recollect more distinctly what was said and done than third parties who were only spectators of, and not participants in, the thrilling events.
A single bill of exceptions appears in the record, and that was saved to the ruling of the court in refusing to permit the witness Ryan to ansAver a question propounded to him by defendant’s counsel, the question being, “What was the opinion of the witness in regard to the condition of defendant on the day of the killing.” In signing this bill the judge says, in explanation: “The witness Hunt Avas required, before giving any opinion, to give all of the particulars of his intercourse with the defendant on the day of the shooting, which he did,—minutely and in detail stating where they went, what they did, and what they drank ; and then he stated the condition of defendant according to his opinion, as will be seen by the statement of facts in the cause.” We take it that in writing the above the judge has by clerical error inserted the name of Hunt instead of Ryan. [139]*139This presumption is borne out by a reference to Ryan’s testimony, who says : “I know defendant, and saw him on the day that Georgie Drake was killed ; I saw him take a great many drinks, and I drank with him ; he was under the influence of liquor; he was not in his usual frame of mind, but was excited and angry.” It is apparent from this extract from the testimony of this witness that he was not only not prohibited from expressing his opinion as to the condition of the accused, but that he has done so, it seems, as fully as he was capable of doing. One of the theories of the defence was that defendant, when the homicide was committed, was intoxicated to an extent that he was irresponsible for his actions. Every opportunity to make it good, if possible, was, it appears to us, afforded defendant. In addition thereto, defendant’s counsel framed and submitted to the court special instructions with regard to this defence, which were given in charge to the jury without change or modification by the court. No error is made to appear in this connection.
Some objections are urged to portions of the charge of the court. These we have considered attentively, and find them untenable. In its presentation of the law the charge is fully sustained by precedent, and was directly and pertinently applicable to the particular facts developed in the evidence.
Another supposed error grows out of the judgment rendered in the case. After the usual formulary, including a copy of the verdict, the judgment proceeds: ‘ ‘ Whereupon it is ordered, adjudged, and decreed by the court that the defendant, John Lanham, be hung by the neck until he is dead ; that he now be remanded to the county jail, and that he be there securely kept by the sheriff of Bexar County until the execution of this judgment, hereafter to be pronounced by the sentence of this court. It is further ordered by the court that the State of Texas do have and recover of and from the said defendant all costs herein [140]*140expended.” We have italicised the last recital, which' is the portion specially complained of as error.
It is urged that this provision of the judgment “ seeks to forfeit appellant’s estate, and directly subjects it to the costs of this prosecution; ” that this is contrary to our Bill of Rights, and in contravention of the express provisions of our statute; that it is a fundamental error, apparent of record, and sufficient to require a reversal of the judgment.
We find the twenty-first section in the Bill of Rights, art. 1 of our Constitution, declares that “no conviction shall work corruption of blood or forfeiture of estate.” With regard to capital cases and felonies, where the punishment is assessed at imprisonment for life, our statute provides : “In case of the execution of a convict under sentence of death, or where he is imprisoned for life, there shall be no forfeiture of any kind to the State, nor shall any cost of prosecution be collected from his estate.” Pasc. Dig., art. 1664; Rev. Stats., Penal Code, art. 60.
We do not see how the defendant in this proceeding can avail himself of these constitutional and statutory provisions. It is evident that these provisions can only apply to that state of case when the judgment of conviction has , actually gone into execution. When the convict has suffered the penalty of death, or when he is undergoing a life-term of imprisonment in the penitentiary, then the statute inhibits the collection of the costs from his estate. In such event the question might well and successfully, we think, be raised by his heirs, or those entitled to the estate, against any effort to render it liable to the payment of the costs of the prosecution. The judgment in regard to costs is not void, but voidable in such cases at the instance of the convict’s representatives. Even if that portion of the judgment was void, it would not necessarily invalidate the other portions which are not objectionable; for, under authority expressly conferred by statute, this court might and would [141]*141reform and correct its defects. Pasc. Dig., art. 3208 ; Rev. Stats., Code Cr. Proc., art. 869 ; Prince v. The State, 44 Texas, 480; Cain v. The State, 20 Texas, 355; Cordova v. The State, 6 Texas Ct. App. 455. We are of opinion that the proper practice would be to omit rendering a judgment for costs in such cases as are mentioned in the statute.
It only remains now to look at the sufficiency of the evidence, which is also controverted on this appeal. A calm and most serious consideration of it in all its aspects and bearings must, we think, convince and satisfy beyond doubt any unprejudiced mind that the prosecution has most fully established the charge preferred in the indictment.
Defendant and deceased had lived together for some time in criminal intimacy. He suspected and charged her of criminal intimacy with others. This caused difficulties, disputes, quarrels, blows, and a separation between them, and a fight ensues between defendant and his favored rival the day prior to the killing. Defendant determines to have revenge. He tells his friends that he intends to - kill the soldiers who have interfered between him and his paramour, and to more than one, on the day of the killing, he expresses his determination to take the life of the deceased. During the day he stimulates himself with strong drink, and in the evening purchases the pistol to be used in the “ rnatinée ’ ’ which he says he is to have, and to which he invites his friends. With a purpose firmly and deliberately fixed, he goes to the theatre where the tragedy is to be played which he has concocted, and there, whilst his intended victims are endeavoring to soothe and palliate his anger with assurances of good-will and friendship, he turns upon them and without reply begins the firing. Three shots are aimed at the fleeing “ soldiers.” He then turns, and, advancing upon deceased, who is standing off some distance powerless and evidently appalled at the scene, he fires upon her at such proximity that her face is powder-[142]*142burnt. The bullet passes through the face, fractures the spinal column, and comes out at the back of the neck, His victim falls to the ground, and death ensues from the effect of the wound. So soon as the fatal shot is fired, defendant flees. Is any thing wanting to make this a case of murder in the first degree, — a murder on express malice? If so, we have failed to discover it.
Impressed with the deep solemnity of the issue involved, we have considered the record with all the care the gravity and importance of the case required. We have found in it no such error with regard to the law or facts submitted to us in the record as would authorize us to disturb the judgment, and it is therefore affirmed.
Affirmed.