Hurt, J.
Jack Post and his brother, Nelson Post, were jointly indicted for the murder of G. B. McDermott. After severing, Jack Post was tried and convicted of murder of the first degree; the jury awarding the death penalty. There are four points raised by bill- of exceptions which will first be noticed, and then some observations will be made upon the charge of the court,—that part of the charge which relates to circumstantial evidence.
. The first bill calls in question the action of the court in regard to the competency of two of the jurors. When tested, these jurors stated that they had formed an opinion and that evidence would be required to remove the same. Being questioned by the court they stated that they “had never heard witnesses, nor any one who pretended to know the facts, detail them; that the opinion was not definite and fixed; have no present conviction; could render verdict entirely free from any previous opinion.” These jurors were not examined further. If a juror has formed an opinion, the opinion formed would very likely remain until removed by evidence, though the opinion be ever so slight; hence it becomes very important to inquire into the means or character of information constituting the basis of the opinion. If the juror has talked with the witnesses, or read what purported to be a correct account of the transaction, the opinion would more likely be definitely settled, and established. If, however, it is formed from reports or rumors, the proba[592]*592bility that it is fixed or established is very much lessened. While it is true that an opinion from rumor may be so well established as to render the jurors incompetent, yet the source of information becomes of vital importance when considering the extent of the convictions of the juror. As before observed, the most feeble opinion requires evidence of some character to be removed. The fact to be ascertained is whether or not the juror has formed such an opinion as will probably - influence his verdict. These jurors swore that they had formed no such opinion. Their examination closing just here, we are of the opinion that they were competent, and that there was no error in holding them as such by the court.
It appears by the second bill that one Dr. Atkinson had testified when this case was on trial before the examining court, and that his evidence had- been properly reduced to writing by the justice. Afterwards he left Texas, and went to the State of Arkansas. As a predicate for the introduction of his evidence taken before the examining court, the State proved by one Joline that he had received a letter from Dr. Atkinson, postmarked at Pine Bluff, Arkansas, and that in the letter Atkinson stated that he was practicing there; that the letter was written by Dr. Atkinson. The defendant objected upon the ground that the letter should have been produced. So states the bill, but the judge appends the following to the bill:.“No objection to the contents of the letter by paroi was made at the time. The predicate laid on the testimony of 0. E. Finlay and 0. 0. Johnson in statement of facts.” If the defendant had objected to the proof of the contents of this letter at the proper time, the court should and no doubt would have sustained the objection. Not having thus objected, it comes too late after verdict to urge this objection, for a most excellent reason, to wit: if the objection had been taken when the proof was offered, the State would have remedied the defect by producing the letter or accounting for its non-production.
[593]*593There was no other objection to the predicate laid for the reading to the jury the evidence of Dr. Atkinson, except that there was “no oath made of the fact of said witness living beyond the jurisdiction of this court.” It is not necessary in limine to make a formal oath to this fact. Proof that the witness lived beyond the process of this court can be made by the same means as any other fact. This, we think, was clearly done by the evidence of the witnesses Finlay and Johnson.
While upon this subject, we desire to state the rule which we think should govern in a case in which the evidence of a witness has been taken before an examining court. If the deposition is taken before an examining court or a jury of inquest, and is reduced to writing and certified according to law, and the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, and since the deposition was taken the witness has died or has moved beyond the limits of this State, or has been prevented from attending the court through the act or agency of the defendant, or" by the act or agency of any person whose object it was to deprive the defendant of the benefit of the testimony, or if by reason of age or bodily infirmity such witness cannot attend, the deposition is admissible. This rule has reference to depositions taken before examining courts. We are not treating of this subject generally. Former decisions of this court state the rule applicable to almost every phase of case. Under the above rule, the fact that the witness is dead or beyond the limits of this State, etc., must be proved by the party seeking to use the deposition. Mere temporary absence from the State will not do; the witness must have “moved beyond the limits of the State.” In regard to this matter, we find no error in the action of the court below.
From the third bill it appears that the State, over the [594]*594•objection of defendant, proved, on cross-examination of a witness for the defense, “that Post (the defendant) told him he got McDermott’s corn and cotton,— about twenty or thirty bushels of corn.” This evidence was clearly admissible. It is in evidence that defendant had neither corn nor cotton, and that, just after the murder* he was found in possession not only of corn and cotton,but of the stock, wagon and household goods of deceased. That these facts were elicited from defendant’s witness, upon cross-examination, constitutes no error. This matter is entirely Avithin the discretion of the court belovv,- and, if not abused to the injury of the defendant, will not be revised by this court.
It seems from the fourth bill that the State offered to read to the jury certain articles of the Penal Code; to which the defendant objected, and his objection was overruled by the court. By reference to the statement of facts it will be seen that Mrs. Post, mother of the defendant, testified that McDermott left because he was living in adultery with, and for cursing one widow Black. The State introduced' the record of the trial of McDermott for the breach of the peace, in which it appears .that deceased had been fined one dollar, and proved by the.county attorney that deceased had arranged with him for his fee. To meet the charge of adultery, we suppose the articles of the Code were read. To us this last was an anomalous proceeding indeed; and if there was the slightest tendency to injure the rights of the defendant we would be compelled to reverse the judgment. The rule, however, on this subject is this: “If the evidence goes to establish a fact material and pertinent to the issue, if admitted, and is illegal, its admission would be erroneous and must be • held so by this court.” Williams v. State, 44 Texas, 116. Nor does the fact that there is other sufficient and competent exddence to support the conviction alter the rule. In. this case, however, we fail to see the pertinency or [595]*595materiality of the evidence, nor does it appear that the slightest injury was inflicted upon the defendant by its introduction.
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Hurt, J.
Jack Post and his brother, Nelson Post, were jointly indicted for the murder of G. B. McDermott. After severing, Jack Post was tried and convicted of murder of the first degree; the jury awarding the death penalty. There are four points raised by bill- of exceptions which will first be noticed, and then some observations will be made upon the charge of the court,—that part of the charge which relates to circumstantial evidence.
. The first bill calls in question the action of the court in regard to the competency of two of the jurors. When tested, these jurors stated that they had formed an opinion and that evidence would be required to remove the same. Being questioned by the court they stated that they “had never heard witnesses, nor any one who pretended to know the facts, detail them; that the opinion was not definite and fixed; have no present conviction; could render verdict entirely free from any previous opinion.” These jurors were not examined further. If a juror has formed an opinion, the opinion formed would very likely remain until removed by evidence, though the opinion be ever so slight; hence it becomes very important to inquire into the means or character of information constituting the basis of the opinion. If the juror has talked with the witnesses, or read what purported to be a correct account of the transaction, the opinion would more likely be definitely settled, and established. If, however, it is formed from reports or rumors, the proba[592]*592bility that it is fixed or established is very much lessened. While it is true that an opinion from rumor may be so well established as to render the jurors incompetent, yet the source of information becomes of vital importance when considering the extent of the convictions of the juror. As before observed, the most feeble opinion requires evidence of some character to be removed. The fact to be ascertained is whether or not the juror has formed such an opinion as will probably - influence his verdict. These jurors swore that they had formed no such opinion. Their examination closing just here, we are of the opinion that they were competent, and that there was no error in holding them as such by the court.
It appears by the second bill that one Dr. Atkinson had testified when this case was on trial before the examining court, and that his evidence had- been properly reduced to writing by the justice. Afterwards he left Texas, and went to the State of Arkansas. As a predicate for the introduction of his evidence taken before the examining court, the State proved by one Joline that he had received a letter from Dr. Atkinson, postmarked at Pine Bluff, Arkansas, and that in the letter Atkinson stated that he was practicing there; that the letter was written by Dr. Atkinson. The defendant objected upon the ground that the letter should have been produced. So states the bill, but the judge appends the following to the bill:.“No objection to the contents of the letter by paroi was made at the time. The predicate laid on the testimony of 0. E. Finlay and 0. 0. Johnson in statement of facts.” If the defendant had objected to the proof of the contents of this letter at the proper time, the court should and no doubt would have sustained the objection. Not having thus objected, it comes too late after verdict to urge this objection, for a most excellent reason, to wit: if the objection had been taken when the proof was offered, the State would have remedied the defect by producing the letter or accounting for its non-production.
[593]*593There was no other objection to the predicate laid for the reading to the jury the evidence of Dr. Atkinson, except that there was “no oath made of the fact of said witness living beyond the jurisdiction of this court.” It is not necessary in limine to make a formal oath to this fact. Proof that the witness lived beyond the process of this court can be made by the same means as any other fact. This, we think, was clearly done by the evidence of the witnesses Finlay and Johnson.
While upon this subject, we desire to state the rule which we think should govern in a case in which the evidence of a witness has been taken before an examining court. If the deposition is taken before an examining court or a jury of inquest, and is reduced to writing and certified according to law, and the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, and since the deposition was taken the witness has died or has moved beyond the limits of this State, or has been prevented from attending the court through the act or agency of the defendant, or" by the act or agency of any person whose object it was to deprive the defendant of the benefit of the testimony, or if by reason of age or bodily infirmity such witness cannot attend, the deposition is admissible. This rule has reference to depositions taken before examining courts. We are not treating of this subject generally. Former decisions of this court state the rule applicable to almost every phase of case. Under the above rule, the fact that the witness is dead or beyond the limits of this State, etc., must be proved by the party seeking to use the deposition. Mere temporary absence from the State will not do; the witness must have “moved beyond the limits of the State.” In regard to this matter, we find no error in the action of the court below.
From the third bill it appears that the State, over the [594]*594•objection of defendant, proved, on cross-examination of a witness for the defense, “that Post (the defendant) told him he got McDermott’s corn and cotton,— about twenty or thirty bushels of corn.” This evidence was clearly admissible. It is in evidence that defendant had neither corn nor cotton, and that, just after the murder* he was found in possession not only of corn and cotton,but of the stock, wagon and household goods of deceased. That these facts were elicited from defendant’s witness, upon cross-examination, constitutes no error. This matter is entirely Avithin the discretion of the court belovv,- and, if not abused to the injury of the defendant, will not be revised by this court.
It seems from the fourth bill that the State offered to read to the jury certain articles of the Penal Code; to which the defendant objected, and his objection was overruled by the court. By reference to the statement of facts it will be seen that Mrs. Post, mother of the defendant, testified that McDermott left because he was living in adultery with, and for cursing one widow Black. The State introduced' the record of the trial of McDermott for the breach of the peace, in which it appears .that deceased had been fined one dollar, and proved by the.county attorney that deceased had arranged with him for his fee. To meet the charge of adultery, we suppose the articles of the Code were read. To us this last was an anomalous proceeding indeed; and if there was the slightest tendency to injure the rights of the defendant we would be compelled to reverse the judgment. The rule, however, on this subject is this: “If the evidence goes to establish a fact material and pertinent to the issue, if admitted, and is illegal, its admission would be erroneous and must be • held so by this court.” Williams v. State, 44 Texas, 116. Nor does the fact that there is other sufficient and competent exddence to support the conviction alter the rule. In. this case, however, we fail to see the pertinency or [595]*595materiality of the evidence, nor does it appear that the slightest injury was inflicted upon the defendant by its introduction. If it had a tendency to prove a material fact for the prosecution, or if it tended to weaken a material fact proved by defendant, or if it tended to prejudice the defendant in the estimation of the jury, having; been objected to by him, we would feel inclined to reverse and remand the case. But, on the other hand, if this, court must reverse for every irregularity, though objected' to, whether it tended to injure the defendant or not, it would be almost impossible in a great many cases to; legally convict. The action of the court in this matter, was wrong, but no injury appearing therefrom we cannot1 make it a ground for reversal. This disposes of all the bills of exception. We are not limited to these, however, for if by bill or otherwise, errors in the record appear calculated to injure the rights of defendant, we will consider them whether pointed out by bill, motion for new trial, or assignment of errors.
In this connection we desire to notice a certain part of the charge of the court which is as follows: “When the State relies upon circumstantial evidence alone in order to warrant a conviction, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; all the facts must be consistent with each other, and with the main fact, sought to be proved, and the cncumstances taken together must be of a conclusive nature and leading upon the whole to a satisfactory conclusion, and producing in effect a reasonable and a moral certainty that the accused and no other person committed the offense charged. The circumstances should not only be consistent with the defendant’s guilt but inconsistent with any other reasonable hypothesis or rational conclusion consistent with the facts of the case. Oircumstantial evi•dence is often as cogent- and conclusive .upon the [596]*596understanding as direct and positive evidence, and all the law exacts from the jury in such a case is that their minds should be satisfied beyond a reasonable doubt of the guilt of the prisoner.”
There was no objection taken at the time to that part of the charge which attempted to bolster circumstantial evidence. To us it is passing strange indeed that such a charge should be given in any case, for there is an unbroken line of decision in this State, condemning in the clearest and mo^t unqualified terms, this character of charge. We will cite some of the cases bearing upon the subject: Walker v. State, 42 Texas, 373; Stuckey v. State, 7 Texas Ct. App. 174; Harrison v. State, 8 Texas Ct. App. 183; Harrison v. State, 9 Texas Ct. App. 107.
. If we could presume that this charge was calculated to injure the rights of the defendant, the judgment would be reversed though not excepted to at the time, but as the very able attorney who represented the appellant, and heard the charge read to the jury, did not see any injury at that time, and as we fail to perceive any, though a charge upon the weight of evidence, we cannot hold it such error as will warrant a reversal of the judgment. However, if it had been objected to, we would have been compelled to reverse. The rule upon this state of case is very clearly and concisely stated in the Walker case, cited above: “A charge upon the weight of evidence is not necessarily a ground for reversal, unless it appears by bill of exceptions that it was objected to at the time it was given, so as to enable the district judge to correct it or withdraw it from the jury, if he should think proper to do so.” (Arts. 1197 and 1505, Code Crim. Proc.) “If the defendant fails to except at the time, he may still make it a ground for motion for new trial, and then, if it appears so flagrant and as a matter in issue of vital importance, so as to make it error, as it must be — being contrary to law — but also a material error calcu[597]*597lated to injure the rights of the defendant, then it will be good ground for new trial, the refusal of which, if made on such ground, will authorize this court to reverse the judgment of conviction in case of felony.”
Applying these rules, and viewing the obnoxious charge in the connection in which it stands, it being in such close juxtaposition with that which is very favorable to defendant and calculated to control and modify its effects, we do not think such injury has been done the defendant as will justify a reversal of the judgment. We cannot leave this subject without expressing the hope that we may never be called upon to pass upon another such charge.
Appellant assigns for error that the judge appointed a foreman of the jury. There was no objection to this at the time; if there had been, we make no doubt the court would have corrected this matter. Being in the habit of appointing foremen led to this error no doubt, and if the attention of the court had been called to the Code at the proper time, the correction would have been made. In this matter no injury appears to have resulted to the defendant. If, however, there had been an objection taken at the time, and the court had persisted, being in direct violation of the Code we,would have presumed a wrong motive, and reversed the judgment. This, however, is not the case.
■ There are a" great many points raised by the defendant, but we do not think any are well taken. We have noticed those thought to be the most serious, and have found nothing thus far to authorize us in disturbing the judgment of the' court below. The evidence discloses a casa of minder of the first degree, committed in the perpetration of robbery. That the defendant is the guilty party, or one of them, there cannot be the slightest doubt. Just after the murder of McDermott, defendant was in the possession not only of his horses, wagon, corn and cotton, [598]*598but the bloody fruits of the foul murder. ” The proof was full and complete, and was made so from a great many different sources. There remains nothing left to us but to approve the judgment. Though the appellant is not represented here by counsel or brief, we have endeavored to give to this record our most serious attention, in order that if there had been such error committed upon the trial as would justify a reversal, we might discover it,' and extend relief to the defendant by reversing the judgment and remanding the cause for a new trial. None such has been discovered.
We are therefore- compelled to approve the judgment of the court below.
- Affirmed.