Httbt, Judge,
The appellant, Sam Lewis, was indicted for the murder of William Finkelstien, a peddler, on the twenty-first of October, 1879. He was tried and convicted of murder in the « first degree; his punishment being assessed at confinement in the penitentiary for life. From this judgment and sentence he appeals and relies upon a number of assignments of error.
His first error is the action of the court in overruling defendant’s motion to quash the venire upon the ground of the insufficiency of the return of the sheriff touching his diligence to find and summon certain veniremen. In regard to the jurors not summoned the return of the sheriff is as follows: “And the following named persons whose names appear upon said venire were not summoned for the following reasons, to-wit: F. Kendel, W. Garles, C. H. Burns, D. P. Croft, John Burk and W. S. Lane,are all out of Fayette county, and could not be found in said county although diligent search was made for them by the sheriff of Fayette county and his deputies; andH. C. Gerdes, John Frierson, A. Groos, W. Dick, August Misclier and N. M. Cockrell were not found in Fayette county although diligent search was made for them at their residences and places of business, and at any point at which they were likely to be. found by the sheriff of said Fayette county and his deputies.” Article 614, Code Criminal Procedure requires the- diligence to be stated. This return, we think, fully complies with the Code, and, if true, great pains was tairen to summon these jurors.
By the second assignment it is insisted that the court erred in overruling- defendant’s motion for continuance.
Jack Lewis, of Colorado county, S. Smith, of Bastrop, and Handy Holman, of Fayette, were the witnesses desired. Lewis was attached by the sheriff of Colorado county, and was released by the order of John Mitchell, Esq., on the fifteenth day of November, 1883. Defendant in his motion states that Mitchell was not an attorney in the case, and that he was not authorized to release this witness Lewis. This maybe true. The question, however, is one of diligence. Lewis was discharged on the fifteenth day of November, and the cause was not reached or called for trial until the twenty-third of that month. We are nob informed by defendant’s motion at what time he learned that Lewis had been released from the attachment. It may have been the same or the next day, leaving- ample time for an[661]*661other attachment to have been issued, served and the attendance of the witness secured.
Again, the evidence of said witness Lewis is not shown to be competent. In his motion defendant says “that he expects to prove by said witness that affiant told witness, after the murder, * * that he did not intentionally kill deceased, but deceased struck him over the head with a buggy whip, and he returned the blow with no intention of killing the deceased.” That “ affiant told witness.” etc. When and where did he tell the witness? To be admissible, the statement of affiant (the defendant) must have been res gestee, and all of the facts and circumstances, the time and place, must be stated, which are necessary to show that, in fact, his state,ment was res gestee.
By the next witness the defendant expected to prove “that there existed in the county so great a prejudice against defendant that he could not obtain a fair and impartial trial in said county; that he is a material witness on a motion for change of venue. A sufficient answer to this is that there was no motion made for a change of venue. If defendant had filed his motion for that purpose, and desired witnesses to establish his right to a change, the court no doubt would have caused proper process to be issued, and would have given defendant time to assert his right in regard to this motion. But, as there was no effort made to assert his right to a change of venue, we presume the defendant abandoned this purpose.
The other witness is Henry Smith. By this witness defendant expects to prove “that Holman (a very important witness for the State) before the jury of inquest did not swear that affiant laughed when he saw that deceased was dying.” It is not stated in the motion for continuance that Holman said anything upon this subject at all. His attention was not called to this matter, nor does it appear (from the motion) that the negative of what the witness swore on the trial was even so much as hinted at in his testimony before the inquest.
That a witness fails to state everything that was done and s.;id by the parties at the time of the occurrence of the facts to which he swears is not a contradiction. To be such, he must make a statement in regard to the fact. If he omits a fact, his attention should be drawn to it, or, if he is asked if what he has stated was all that was said by the party or parties, and he answers in the affirmative, and upon the trial he embraces other facts,-in his evidence, than those related bv him before the in[662]*662quest, the defendant would have the right to show this. This, however, is not the state of the question in the case in hand. As presented to us by the record, Holman simply testified' tasóme facts which were omitted in his evidence before the inquest, and these not in conflict but harmonious with his evidence there given.
The court did not err in overruling the motion for continuance.
It is assigned as error that the court erred in holding the juror Zreemer competent. This juror was challenged peremptorily, and the defendant did not exhaust his challenges. It is now settled by this court that, to complain of the action of the court in erroneously holding a juror competent, the defendant must exhaust his peremptory challenges. We are of the opinion, however, that the juror was impartial and competent. The juror stated that when he heard of the killing “he said the defendant ought not to have killed the deceased, but that he had formed no opinion, nor then had any opinion about the case.”
Fourth assignment is “that the court erred in permitting Hat. Holman, a witness for the State, but one who was not present at the killing, to give his opinion of the manner in which the blow was struck, and the relative position of the parties, when the State had failed to show witness to be an expert in such matters.” Holman described the wound minutely, and the shovel (the weapon used), and then gave his opinion that, “if the wound inflicted on Finkelstien was made with the shovel, he must have been hit with the eye of it; no other part of the shovel could make the same kind of a wound as was on him.” This evidence, to wit, the witness’s opinion, was not competent. But was the defendant injured by it? We think not. The wound was of that character, taken in connection with the formation of the shovel, as to place it beyond cavil that, if inflicted with the shovel, it must have been with that part known as the eye. This opinion of the witness was perfectly patent, and, whether expressed or not, the jury would have irresistibly reached the same conclusion. If the State had been seeking to identify the weapon with which the blow was inflicted, by this evidence, we would hesitate before sanctioning such means. This, however, was not the case, there being an eye witness to the fact that the blow was inflicted with the shovel.
5. “During the progress of the trial the honorable judge absented himself from the court room, and remained outside without notifying counsel. The counsel for State continued to [663]
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Httbt, Judge,
The appellant, Sam Lewis, was indicted for the murder of William Finkelstien, a peddler, on the twenty-first of October, 1879. He was tried and convicted of murder in the « first degree; his punishment being assessed at confinement in the penitentiary for life. From this judgment and sentence he appeals and relies upon a number of assignments of error.
His first error is the action of the court in overruling defendant’s motion to quash the venire upon the ground of the insufficiency of the return of the sheriff touching his diligence to find and summon certain veniremen. In regard to the jurors not summoned the return of the sheriff is as follows: “And the following named persons whose names appear upon said venire were not summoned for the following reasons, to-wit: F. Kendel, W. Garles, C. H. Burns, D. P. Croft, John Burk and W. S. Lane,are all out of Fayette county, and could not be found in said county although diligent search was made for them by the sheriff of Fayette county and his deputies; andH. C. Gerdes, John Frierson, A. Groos, W. Dick, August Misclier and N. M. Cockrell were not found in Fayette county although diligent search was made for them at their residences and places of business, and at any point at which they were likely to be. found by the sheriff of said Fayette county and his deputies.” Article 614, Code Criminal Procedure requires the- diligence to be stated. This return, we think, fully complies with the Code, and, if true, great pains was tairen to summon these jurors.
By the second assignment it is insisted that the court erred in overruling- defendant’s motion for continuance.
Jack Lewis, of Colorado county, S. Smith, of Bastrop, and Handy Holman, of Fayette, were the witnesses desired. Lewis was attached by the sheriff of Colorado county, and was released by the order of John Mitchell, Esq., on the fifteenth day of November, 1883. Defendant in his motion states that Mitchell was not an attorney in the case, and that he was not authorized to release this witness Lewis. This maybe true. The question, however, is one of diligence. Lewis was discharged on the fifteenth day of November, and the cause was not reached or called for trial until the twenty-third of that month. We are nob informed by defendant’s motion at what time he learned that Lewis had been released from the attachment. It may have been the same or the next day, leaving- ample time for an[661]*661other attachment to have been issued, served and the attendance of the witness secured.
Again, the evidence of said witness Lewis is not shown to be competent. In his motion defendant says “that he expects to prove by said witness that affiant told witness, after the murder, * * that he did not intentionally kill deceased, but deceased struck him over the head with a buggy whip, and he returned the blow with no intention of killing the deceased.” That “ affiant told witness.” etc. When and where did he tell the witness? To be admissible, the statement of affiant (the defendant) must have been res gestee, and all of the facts and circumstances, the time and place, must be stated, which are necessary to show that, in fact, his state,ment was res gestee.
By the next witness the defendant expected to prove “that there existed in the county so great a prejudice against defendant that he could not obtain a fair and impartial trial in said county; that he is a material witness on a motion for change of venue. A sufficient answer to this is that there was no motion made for a change of venue. If defendant had filed his motion for that purpose, and desired witnesses to establish his right to a change, the court no doubt would have caused proper process to be issued, and would have given defendant time to assert his right in regard to this motion. But, as there was no effort made to assert his right to a change of venue, we presume the defendant abandoned this purpose.
The other witness is Henry Smith. By this witness defendant expects to prove “that Holman (a very important witness for the State) before the jury of inquest did not swear that affiant laughed when he saw that deceased was dying.” It is not stated in the motion for continuance that Holman said anything upon this subject at all. His attention was not called to this matter, nor does it appear (from the motion) that the negative of what the witness swore on the trial was even so much as hinted at in his testimony before the inquest.
That a witness fails to state everything that was done and s.;id by the parties at the time of the occurrence of the facts to which he swears is not a contradiction. To be such, he must make a statement in regard to the fact. If he omits a fact, his attention should be drawn to it, or, if he is asked if what he has stated was all that was said by the party or parties, and he answers in the affirmative, and upon the trial he embraces other facts,-in his evidence, than those related bv him before the in[662]*662quest, the defendant would have the right to show this. This, however, is not the state of the question in the case in hand. As presented to us by the record, Holman simply testified' tasóme facts which were omitted in his evidence before the inquest, and these not in conflict but harmonious with his evidence there given.
The court did not err in overruling the motion for continuance.
It is assigned as error that the court erred in holding the juror Zreemer competent. This juror was challenged peremptorily, and the defendant did not exhaust his challenges. It is now settled by this court that, to complain of the action of the court in erroneously holding a juror competent, the defendant must exhaust his peremptory challenges. We are of the opinion, however, that the juror was impartial and competent. The juror stated that when he heard of the killing “he said the defendant ought not to have killed the deceased, but that he had formed no opinion, nor then had any opinion about the case.”
Fourth assignment is “that the court erred in permitting Hat. Holman, a witness for the State, but one who was not present at the killing, to give his opinion of the manner in which the blow was struck, and the relative position of the parties, when the State had failed to show witness to be an expert in such matters.” Holman described the wound minutely, and the shovel (the weapon used), and then gave his opinion that, “if the wound inflicted on Finkelstien was made with the shovel, he must have been hit with the eye of it; no other part of the shovel could make the same kind of a wound as was on him.” This evidence, to wit, the witness’s opinion, was not competent. But was the defendant injured by it? We think not. The wound was of that character, taken in connection with the formation of the shovel, as to place it beyond cavil that, if inflicted with the shovel, it must have been with that part known as the eye. This opinion of the witness was perfectly patent, and, whether expressed or not, the jury would have irresistibly reached the same conclusion. If the State had been seeking to identify the weapon with which the blow was inflicted, by this evidence, we would hesitate before sanctioning such means. This, however, was not the case, there being an eye witness to the fact that the blow was inflicted with the shovel.
5. “During the progress of the trial the honorable judge absented himself from the court room, and remained outside without notifying counsel. The counsel for State continued to [663]*663examine his witness in the absence of the court, and when counsel for the defense arose to object to his manner of interrogating the witness, no court was present to sustain or overrule the objection to the evidence, and during this interval illegal and damaging evidence to the defense went to the jury.” The record informs us “that the presiding judge retired under a call of nature for a brief minute, supposing the counsel would take notice thereof. Counsel for defendant did not complain of any testimony introduced in his absence, but stated that he had offered objections to some testimony, and that counsel for both parties said they waited his return and then presented the objection to the testimony.”
In the first place, we are not informed of what the illegal and damaging testimony complained of by defendant consisted. This is fatal to the bill of exceptions. Again, the momentary absence of the presiding judge during the examination of a witness, under the circumstances mentioned in the record, will not of itself justify this court in reversing the judgment. If illegal or improper evidence had been introduced by the State, over objection of defendant, during this absence, a motion to exclude would have resulted to his relief against such evidence. But we cannot hold the opinion of counsel that there was illegal evidence admitted; the facts must be set out that this court may pass upon their illegality. Notwithstanding the very high respect in which the counsel for defendant is held by this court,, we must be permitted to say that we view this whole matter as frivolous.
Sixth assignment: “The court erred in admitting the evidence of Holman (a witness for the State) as to the murder, when the said witness knew nothing about the date of the killing, not even being able to give the year of the killing.” The date of the killing was very clearly proven by other witnesses. The witness Holman referred to the same homicide. That he failed to remember the year is no objection to the competency of his evidence.
0i_. «'p}le court refused to grant the defendant time to take down the testimony.” In this there was no error.
7. The court refused to give any of the charges asked by the defendant. The proper charges requested were embraced in the charge of the court. The other charges refused were without facts, or were upon the weight of the evidence, and were properly refused.
[664]*664. 7-¡-. “ The court refused to admit the evidence of T. W. Smith, the justice of the peace who sat on the inquest held over the body of the deceased in 1879, in the absence of the papers.” What papers ? We may presume that the testimony taken before the jury of inquest was reduced to writing. But certainly bills of exception should be more specific. What facts did defendant propose to prove by this witness ? We know not. Were they competent and beneficial to the defendant ? Here again we need light. But the explanation of the learned judge, we think, shows, that there is nothing whatever in this billl. We are informed by the record that the State admitted the loss of the papers, and. offered to permit any testimony showing their contents, and that the loss was known upon a former trial, and it was only as to the loss of the papers that the court would not hear further testimony by Smith. What necessity was there for any proof of the loss of these papers by Smith or any other witness, when their loss was an admitted fact ?
8. The court gave verbal instructions to the jury, to wit: “that they should not cast lots in coming to a verdict.” In this there was no error.
9. “The court erred in the charge.” The bill of exceptions points out no error in the charge. However, this being a felony, the charge of the court has been thoroughly examined, and Ave find that the law applicable to the case made by the evidence Avas fully and clearly given in charge to the jury.
10. “ The court erred in refusing to grant a neAv trial in the case, on the grounds set forth in the motion of defendant therefor.” In addition to some of the matters already mentioned, the motion for new trial contained two others: 1, newly discovered evidence; 2, that the verdict of the jury is contrary to and not supported by the evidence. This newly discovered evidence consists of the facts set forth in the affidavit of B. D. Shropshire, Esq., in regard to those lost papers, already mentioned in this opinion. Heither the motion for new trial nor the affidavit of Shropshire indicates that a material fact, beneficial to the defendant, could be established by those papers, if found. The motion seeks a new trial upon the ground that there is a probability of finding those papers. Suppose they should be found, how would defendant be benefitted by them? To authorize a neAV trial upon this ground, this must be shown in such clear light as to place it beyond doubt. To be explicit: 1. The newly discovered evidence must be made to appear material. 3. Hot [665]*665in conflict to such extent as to render its truth improbable. 3, It must be beneficial, exculpatory, in its nature.
Appellant being convicted of murder of the first degree, it is urgently insisted by his learned counsel that the evidence fails to support the verdict finding him guilty of that offense; and it is very plausibly argued by counsel that, as there was no proof that defendant took the life of deceased by starving, torture, etc., or by lying in wait, or that he had threatened to kill him, or entertained grudges against him, or had concocted schemes to do him bodily harm, that, therefore, there was no proof of express malice. In this we cannot agree with counsel for defendant.
Express malice is where one with a sedate and deliberate mind and formed design kills another; and this formed design is evidenced, proven, by external circumstances discovering that inward intention; and this formed design, inward intention, is discovered, made manifest, by such external circumstances as taking life by starving, torture, etc., or by lying in wait, or antecedent menaces, former grudges and concocted schemes to do bodily harm. These are illustrations of the external circumstances which .discover the formed design, the inward intention, but they do not exhaust the whole field of facts and circumstances by which the formed design, the inward intention, may be discovered.
If it is shown by any fact or circumstances—is made manifest —that one with a sedate and deliberate mind and formed design, kills another, the killing would be upon express malice, and these external circumstances discovering the formed design may transpire at the time of the killing, as well as before. “For though the killing be upon a sudden difficulty, it may be attended with such circumstances of enormity, cruelty, deliberate malignity, cool calculating compassings, or even calm demeanor and absence of passion, as will be sufficient evidence to establish the inference that the killing was the result of a sedate, deliberate mind and formed design to take life or do some great bodily harm. Acts and admissions or other language of the prisoner, even after the mortal stroke or killing, may often be pertinent evidence as tending to show express malice at tho time of the killing.” The last two rules apply with great force to the facts in this case.
(The Reporters will give the statement of facts, charge of the court, and the refused charge.)
[666]*666Opinion delivered March 17, 1883.
We are of the opinion that the evidence supports the verdict. We have given every question raised by the record and brief of counsel our most careful, consideration, such consideration as the gravity of the case demands, and have not discovered an, error in the record such as will warrant a reversal of the judgment.
The judgment is affirmed.
Affirmed.