Renfro v. State

56 S.W. 1013, 42 Tex. Crim. 393

• Court: Court of Criminal Appeals of Texas
• Decided: March 13, 1900
• Docket: No. 1910.
• Status: Published

Opinion

BROOKS, Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

Bill of exceptions number 1 complains of the failure of the court to quash the special venire, and the return of the officer thereon, “for the reason that there was no valid and legal order made and entered directing said venire, or describing same, or commanding that any particular number of men be summoned to attend the court at any particular day; and because the return of said venire did not show that such veniremen as purported to have been summoned were legally summoned, and did not show how they were summoned; and because all said veniremen named and selected in said writ were not summoned; and because the return of the officer purporting to have executed said venire was insufficient, and did not show any cause why certain veniremen were not summoned; and did not show what diligence, if any, had been used in trying to summon said venirement; that a large number of said veniremen, to wit, seven of same, appeared from said return to be not found; and that no diligence was shown by said return as to these veniremen, and no cause was shown for the failure to summon them.” The court appends this explanation to the bill: “That the orders, writs, returns, and records will speak f.or themselves.” We find the order of the court ordering the special venire, but the writs and return alluded to are not in the record. We note that appellant’s contention is that the court permitted the sheriff to amend his return, and, as amended, said return reads, “Not found after diligent search.” This would not be a ground for quashing the venire, even if the sheriff’s return were in the shape insisted upon by appellant. Gay v. State, 40 Texas Crim. Rep., 116; Furlow v. State, 41 Texas Crim. Rep., 12.

Bill number 2 complains that the court permitted the sheriff, after appellant’s motion to quash the venire had been presented and overruled, to amend his return. This has been disposed of above.

Bill number 3 complains that after appellant had filed his motion for change of venue in proper form, the State filed its contesting affidavits, to which defendant objected and demurred, and moved the court to strike the same out, for the reason that said contesting affidavits did not attack or question the credibility of the two credible citizens of Johnson County who had joined with defendant in making the affidavit upon which his application was based, nor the fact that said persons were not possessed of sufficient knowledge to enable them to make said affidavit. Without copying that portion of the State’s contest complained of, we deem it sufficient to say that the contest is not subject to the objections raised by appellant, but we believe that the same is sufficient under the statutes in reference thereto.

Appellant, upon his application for change of venue, introduced the following testimony: W. F. Hoffman testified that he lives in the northern part of Johnson County, and is well acquainted with the people in the county, and thinks there exists so great a prejudice that appellant can not get a fair and impartial trial. Has visited several communities in different parts of the county, finding in each of them great prejudice against appellant. Has heard other persons than those living in these communities express much prejudice against appellant. Remembers being at a meeting house in the Rock Creek community, in the northwestern part of the county. Heard this case discussed, and a great many of those present (in fact, most of them) expressed the sentiment that appellant ought to be dealt with without judge or jury. Met a man there named Moss, from the extreme western part of the county, and he expressed himself in the same way—that that was the way his people thought about it. Has heard the same opinion expressed in gatherings in the Burleson, Pilgrim’s Rest, and Pleasant Point communities. Witness is an uncle of appellant, and has lived in Johnson County thirty-five years. On cross-examination he stated that, altogether, he had only heard the matter spoken of five or six times; that he heard a man who run a barbecue stand in Cleburn express his opinion that defendant ought to be hanged, and George Green, an attorney, stated that defendant had a bad case. Witness states that, with this exception, he could not name any person he had heard talking ■about the case in Cleburne; that he knew nothing of the sentiment of the people in the western, southern, or southeastern parts of the county, and little of the city of Cleburne; that Johnson County has a voting population of about 9000. James Rhea testified that he lived in the northern part of the county, and had lived there for many years. Was unable to say whether or not defendant could get a fair and impartial trial. Had heard the case discussed by a few men, and their expres sions were all against appellant. On cross-examination he stated that he was not acquainted at the county seat, and that his information as to the opinion of the people, even in his own community, near the town of Burleson, where defendant lived, was limited; that he would not pretend to say that defendant could not obtain a fair and impartial trial in Johnson County. William Matthews testified that he lived in the northeastern part of the county for a long time, and did not think that defendant could get a fair and impartial trial in that community, because of prejudice against him. Witness is not very largely acquainted outside of his community, which embraces a scope of country in the northern and northeastern part of the county, about six or seven miles square. Knows the people of that community are much prejudiced against appellant. On cross-examination he stated that he lived within two miles of W. F. Hoffman, with whom appellant had been boarding, in the northeastern part of the county; that his acquaintance in the county was not extensive, and had only heard twenty or thirty people discuss the case, and they lived in an area of six or seven miles square. W. K. Middleton testified that he was summoned as a special venireman. Lives north of Alvarado, and is well acquainted in Alvarado and that section of the county lying east of the Santa Fe Railway and north of Alvarado. Does not think defendant could get a fair and impartial trial at the hands of a jury summoned from that section of the county. Has heard a great many people express themselves as prejudiced against appellant. Heard them say that he ought to be mobbed. He further stated that he lived in about two miles of Burleson, in the northeastern part of the county, and had no acquaintance outside of his own section of the county, and could and would not say that in his opinion defendant could not obtain a fair and impartial trial in Johnson County. Lewis Jackson stated that he lived in the northeastern part of the county, and was well acquainted with the people- in that section; that there is much prejudice against appellant there. On cross-examination he stated that there was some prejudice against appellant in the northeastern part of the county, where witness resided, but could not speak for the generality of the people even in his own section, and would not venture an opinion that defendant could not get a fair and impartial trial at the hands of a jury selected in his own county. D. A. Branson testified that he was summoned as a special venireman. Lived at Burleson, and attended strictly to his own business. Had heard this case discussed in his community, and the people appeared to be against appellant. Take the section of country east of the Santa Fe Railway and north of Alvarado, and witness believes a jury could be obtained from that section that would give defendant a fair and impartial trial. On cross-examination he further stated that he thought that appellant could obtain a fair and impartial trial in Johnson County. O. G. Selman testified that he lives east of Egan, in Johnson County, and is fairly well acquainted in the county. Does not think appellant could get a fair and impartial trial in the county. Has heard quite a num ber of men express themselves about the case, and, by their expressions, they were against appellant. Some of the people thought he ought to be mobbed. Can not say the prejudice is against defendant as an individual, but is against the ease as they have heard it. On cross-examination, that he lived near the town of Burleson, in the northeast part of the county, and about one mile from Bethesda Church. Never heard the case discussed in Alvarado, in the eastern part of the county, and would not say that defendant could not obtain a fair and impartial trial in Johnson County, nor by a jury selected from the northeastern part of the county. F. B. Baillio testified that he is. the editor and proprietor of the Johnson County Review, a weekly newspaper published in that county. At the time of the homicide herein charged, the circulation of the paper was from twelve to fifteen hundred, and witness thinks the paper circulated in every post office in the county. Besides witness’ paper, there were the Enterprise, Chronicle, and Cleburne Herald. Witness ■ identified the copy of the paper handed him, giving an account of the killing. The copy alluded to contained an inflammatory article about the killing, giving as near as obtainable at that time the facts of the same. H. C. Floyd stated that he married appellant’s half-sister, and lived in Cleburne. This case was talked ■ of a great deal in Cleburne, and he heard a good many men express their prejudice against defendant. It is a fact that he could not get a fair and impartial trial here, because of the prejudice. On cross-examination the witness stated that he would not pretend to say that appellant could not obtain a fair and impartial trial in Johnson County, for he did not know the sentiment of the people at -this time, as for quite a while he had been out of the county. Will Haynie testified that he was a peddler, selling dry goods from a wagon, and buying produce, and that his route lies in the northeastern and southeastern part of the county. Brings his produce to Cleburne and sells it. Has heard people in all the different communities which he visited express their prejudice against appellant. Some of the people were women, and some men. Does not think, from what he has heard, that appellant could get a fair and impartial trial. On cross-examination, however, he states that he would not say that, in his opinion, defendant could not obtain a fair and impartial trial in Johnson County, nor at the hands of a jury selected from the section of country he had traveled. In addition to the foregoing testimony, the State offered to place witnesses on the stand to prove that there was no prejudice against appellant; that there was no dangerous combination' against him, as alleged by appellant. But, the court being satisfied the motion for change of venue should be denied, the court refused to hear any evidence offered by the State. This last statement is an explanation attached to the bill by the court. We do not think that the facts as above detailed show that appellant could not get a fair and impartial trial, under the laws and Constitution of this State, in Johnson County at the time of this trial. The evidence discloses that whatever prejudice there might have been, as far as the record shows, was confined to the northeastern part of the county. The county contains 9000 voters, and the witnesses who testified for appellant are nearly all from the northeastern part of the county, where the parties to the tragedy had formerly lived. Some of the witnesses introduced by appellant himself stated that they would not swear that a fair and impartial jury could not be selected in the immediate vicinity where the killing occurred. We find nothing in this bill of exceptions to indicate that there exists any combination of people or any prejudice in Johnson County, such as would likely deprive appellant of a trial fair and impartial, according to the laws and Constitution of this State.

Bill number 5 complains that the State, on cross-examination of 0. G. Selman in reference to the change of venue, asked, “Is it not the prejudice existing against the case, and not against appellant as an individual ?” There was no error in permitting this question to be asked. In Meyers v. State, 39 Texas Criminal Reports, 500, we held that the provisions of article 615, Code of Criminal Procedure, for changing the venue where there exists so great a prejudice in the county against the accused as to render it improbable that he can obtain a fair and impartial trial, embrace both the prejudice against the accused and prejudice arising from prejudgment of his case. The single and only purpose of this statute is to secure to the accused the right of a fair and impartial trial, which is a fair trial by an impartial jury, guaranteed by the Bill of Rights. The prejudice mentioned in the article is such prejudice against the accused himself, or a prejudgment of his particular case or crime. It may be either, or it may be both.

Bill of exceptions number 8 objects to proof on the part of the State that appellant had addressed the daughter of deceased, and been rejected by her. Bill number 9 objects to evidence by the State that appellant slandered the daughter of deceased subsequent to said rejection. Bill number 12 objects to the daughter stating the purpose of the visit of her father (deceased) to Cleburne the morning of the homicide. It appears from the last bill that deceased was a witness in a prosecution against appellant, to be tried that morning, for slandering his daughter. Bill number 13 complains that the State was per^ mitted to show that the firm of Poindexter & Padelford prosecuted appellant in the slander case, and were employed by deceased. Bill number 18 complains of the introduction of the information charging appellant with slander in that case, which information charges that appellant imputed a want of chastity to the young lady he had addressed, and by whom he had been rejected, who was the daughter of deceased. Bill number 24 objects to the evidence of the witness Thomas, to whom appellant repeated the slander against the daughter of deceased. The State’s theory is that appellant had addressed the daughter of, deceased, and had been rejected by her, and he then began to slander and impute a want of chastity to said daughter; that thereupon the father of the girl had a prosecution against appellant instituted for said slander; that appellant had threatened to kill deceased if he persisted in prosecuting him, and stated that he would kill him, if he had to do so in the courthouse. We think that the testimony complained of in said bills was admissible upon the issue of animus and motive actuating appellant at the time of the homicide, as well as to contradict appellant’s contention, to wit, that he had not slandered the daughter of deceased. While it is not always necessary to prove motive for the homicide, yet it is always proper to do so, and the mere fact that in doing so a separate and independent crime may be established or proven does not render proof of such motive inadmissible. Hudson v. State, 38 Texas Crim. App., 333; Brown v. State, 34 Texas Crim. App., 170; Hall v. State, 31 Texas Crim. Rep., 565; Melcek v. State, 33 Texas Crim. Rep., 14; Sullivan v. State, 31 Texas Crim. Rep., 486; Hamblin v. State, 41 Texas Crim. Rep., 135. Said testimony is also admissible to explain threats made by appellant. Gonzales v. State, 31 Texas Crim. Rep., 508; Woods v. State, 37 Texas Crim. Rep., 459.

Appellants also complains because the court overruled his second application for continuance. Without reviewing the evidence sought to be obtained by said application, we deem it sufficient to say that we do not think there is any error in overruling the same, since the same does not comply with the statute on the question of diligence, and the testimony is not material, and not probably true.

Bill number 7 complains that the court forced appellant to exhaust one of his peremptory challenges upon a juror, which juror stated on his voir dire that, from hearing this case talked and read about in the newspaper, he formed his opinion, soon after the killing, nearly a year ago; that he is a man whose opinions are not easily changed; that he has the same opinion now in his mind, and, if taken as a juror, would go in the jury box with it; that it would take evidence to change such opinion; that he is of opinion that he could try the case, and not be influenced by that opinion, and would not be inclined to accept more readily as true evidence in accord with that opinion, nor to reject that not in accord therewith. Whereupon appellant challenged the juror on two grounds: That he came from that section of the county where many of defendant’s compurgators had testified that there existed great prejudice against appellant, and, further, that said juror had an opinion concerning this case. The bill fails to show that appellant at any time exhausted his peremptory challenges. Hence no error is shown.

Bill number 10 states that, while Andy Woodson was on the stand for the State, he was asked by defendant’s counsel if, on a certain Sunday, at Bethesda Church, he did not make threats against defendant, which the witness denied. The State, on direct examination, asked witness what was said by defendant in said conversation at Bethesda Church, to which defendant objected because no part of such conversation had been elicited by defendant; that said answer, as to himself, would be immaterial and irrelevant and incompetent to any issue, and would tend to prejudice the rights of defendant and inflame the minds -of the jury against him. The objections being overruled, witness stated: Appellant “asked me if I had heard the Williams girl say anything about him. I answered, ‘No.’ And he said, ‘Whenever a girl goes far enough to let me get rubbers and have carnal knowledge of her, and treat me as she has treated me, it beats the devil.’ And he further said he did not intend that Nora should marry any other fellow as long as he lived.” The court, in his explanation, states: “The State placed Andy Woodson upon the stand, and proved by him that, the day after defendant was arrested in the slander case, he came by the residence of deceased, stopped at the gate, made certain statements at the house —tried to get to see deceased, to have a conversation with him, as appears by the statement of facts. Thereupon defendant’s counsel took said witness in charge, and proceeded to interrogate him as to various matters touching the chastity of Nora Williams and the other Williams girls—asking him if he did not state to defendant at one time that he had got all out of Hattie Williams himself he wanted, and he did not intend to go with her any more; that the whole Williams family were on it; that Nora Williams was not right; that she had been too intimate with several of the boys. He was further asked if he had not advised defendant not to marry Nora Williams, and touching the slanderous charge contained in the information, and if he had not stated to defendant, at Bethesda Church, about two months after his (witness’) marriage to Hattie Williams, that he had told old man Williams about Nora, and that old man Williams was going to kill defendant, and that he (witness) would aid him, if necessary. During .the first of this cross-examination, the State made objection to same, and stated to the court, if defendant’s counsel persisted in making inquiries of the witness, State’s counsel would" claim the right to cross-examine him fully on said matter, whereupon appellant stated he was willing and ready to inquire and to make the issue as to whether the witness Wood-son or defendant had uttered the slanderous charges against the Williams girls, and proceeded to ask said questions, whereupon, on cross-examination, counsel asked witness to state all that was said between him and defendant in the conversation at Bethesda Church.” The explanation attached to this bill of exception shows that the same was dearly admissible.

Bill number 11 states - that, while W. F. Hoffman was on the stand, appellant asked the question and would have proved the fact that, prior to the making of any slander charge against defendant, defendant told witness (defendant’s uncle) that Andy Woodson (the party who after-wards made the complaint charging defendant with slander, and a State witness) had made slanderous statements against Nora Williams, and offered to prove the further fact that defendant told said witness that he did not believe said statement to be true. This evidence is pure hearsay, and would have been partly self-serving.

Bill number 14 states that while Andy Woodson was on the stand, for the State, he was asked, “Did you ever see anything wrong with these girls?” to which defendant objected on the ground that the truth •or falsity of the alleged slanderous charge was not an issue in this case, and because said statement referred to other parties than the alleged slandered female, and because the fact as to whether said witness had or had not seen anything wrong with these girls would not shed any light upon any issue in this case. The objection being overruled, witness answered, “No, sir.” The court appends this explanation: “Counsel for defendant has asked witness Woodson if he himself had not made different charges of slander against these girls, and if he had not told defendant that other parties, including himself, had'been intimate with the Williams girls, and if he was not the first party that started slanderous charges against these girls, all of which the State objected to; counsel for State stating to the court at the time that, if counsel for defendant persisted in pressing said investigation and forcing said witness to answer said questions, the State would insist on a full cross-examination of the witness on the matter about which counsel for defendant was interrogating said witness. Thereupon the court stated to defendant, if he desired to press said questions, he could do so, but the State should have the right to cross-examine said witness fully on said matters. Counsel for defendant continued to ask said witness various questions touching his supposed slanderous statements about Nora Williams and the other Williams girls,” etc. With this explanation, we think the objections of appellant are without merit, and no error is shown.

Bill number 15 complains that the court permitted the State to ask various witnesses the following question: “Are you acquainted with defendant’s general reputation in the community where he resided, prior to this homicide, for truth and veracity at this time ?” to which defendant objected for the following reasons: That he had been confined in the county jail of Johnson County for a year upon this charge of homicide; that he had not been in a position during said time to make or unmake such reputation; that it was improper and unfair and greatly prejudicial to defendant to permit his reputation at this time to be testified about, and that the inquiry ought to be confined to the time anterior to the homicide; and that such reputation was bad at this-time was the sole result of this homicide and the slander charge immediately preceding—which objections were overruled, and each of said witnesses permitted to state that defendant’s present reputation in the respect inquired about was bad, whereupon defendant asked each of said witnesses if defendant had not always borne a good reputation in such respect prior to this homicide and the slander trouble immediately preceding it, to which said witnesses each answered affirmatively, and defendant’s counsel asked them if they had ever heard anything against defendant’s reputation in that respect, except in connection with the aforesaid mentioned murder and slander charge, and they answered that they had not, whereupon defendant moved to exclude the testimony of each of said witnesses as to what his present reputation was in such respect, which the court refused to do. This bill is allowed, with the explanation “that defendant was placed upon the stand and testified in his own behalf, and the question was whether defendant’s reputation at the time he was testifying, for truth and veracity, was good or bad, and whether he was entitled to belief at the hands of the jury upon his oath. And the court admitted this evidence, believing same was material; at the same time allowing defendant the privilege of showing the character of his reputation prior to the time he became involved in the slander charges in relation to Miss ISTora Williams. The fact that defendant’s conduct towards the young lady was such as to bring his reputation for truth and veracity in question could not, in the opinion of the court, deprive the State of proving the nature of that reputation at this time, when the sole question was whether defendant was entitled to belief upon his oath at the time he testified.” We think that this explanation of the court shows that the ruling of the court in the particular complained of was not erroneous. Where appellant takes the witness stand, it is germane and proper to permit witnesses to be introduced to prove what the reputation of appellant is at the time of his testifying. Certainly the fact that the reputation appellant might then have was perhaps caused from some previous act of his would not make the testimony inadmissible. Fossett v. State, 41 Texas Crim. Rep., 400.

Bill number 16 complains that the court erred in not permitting appellant to prove the good reputation of witness Ledenberg (who was a brother-in-law of appellant) for truth and veracity. An inspection of the bill shows that State’s counsel, on cross-examination, asked witness if he had not made a certain statement. Witness answered that he did not remember whether he made such statement, whereupon State’s counsel produced the written testimony of the witness taken upon the inquest of deceased, and read from same, and asked witness if he did not make the statements read, and if he did not make them under oath, to which witness replied that “he might.” Thereupon the State’s counsel handed him the written statement, asked him to read therefrom what his written statement was on the inquest, and then asked witness if what he stated at the inquest, which was different from that on the trial, was not true; and the witness stated that, if it was in there, it was true. This is-not contradicting the witness, but simply refreshing his memory, and hence did not authorize appellant to introduce evidence to bolster up his reputation for truth and veracity. Spangler v. State, 41 Texas Crim. Rep., 424; Binyon v. State (Texas Crim. App., Dallas Term, 1900), 56 S. W. Rep., 339.

Bill number 17 complains of the argument of State’s counsel. The objection, however, can not be considered, because no special requested instruction was asked by appellant to the effect that the jury should disregard the statements, even conceding the statement to be improper. Monticue v. State, 40 Texas Crim. Rep., 528; Levine v. State, 35 Texas Crim. Rep., 647; Wright v. State, 37 Texas Crim. Rep., 146.

Bill number 18 complains that the court erred in this: The State offered in evidence the complaint made by Andy Woodson, and the information, dated January 27, 1899, in which defendant was charged with uttering certain slanderous language to Andy Woodson of Nora Williams. Appellant objected to said testimony on the ground that the same was irrelevant and immaterial for any purpose, and tended to prejudice the minds of the jury against defendant, and did not show or tend to show that defendant killed M. M. .Williams, nor that he bore any malice towards M. M. Williams; and for the further reason that the complaint was not made b.y said M. M. Williams; that said Williams was not a witness to any fact in said slander trial. The court appends this explanation to the bill: "That deceased, M. M. Williams, was a witness in the slander case, and a subpoena showing he was summoned as a witness in said case by the State was introduced in evidence in connection with the complaint and information. It was also shown by other witnesses that deceased was a witness, and had come to Cleburne on the morning of the homicide in obedience to said subpoena. The court admitted the complaint and information in connection with said subpoena for the purpose of showing motive on part of defendant for the commission of the homicide, and for no other purpose. That neither of said instruments was read to the jury, and the jury were not permitted to read either of said papers, and the purpose of said evidence was limited in the court’s charge.” We think that this explanation shows that the evidence was clearly admissible.

Bill number 22 states: "When defendant was on the stand in his own behalf he was asked by the State’s counsel if he did make in writing the statements contained in certain blank books then exhibited by counsel for State, to which defendant objected, and- asked that he be allowed to ask some preliminary questions concerning same, which being granted, defendant’s counsel asked him if said blank books were not taken from his person after the homicide, and while he was under arrest and unwarned, to which defendant answered that such was the fact; that he had made said written statements in said blank books for the sole and only purpose of giving the same to his counsel for the use and information of said counsel when trying the then pending slander case. Whereupon defendant’s counsel then objected to any question or answer in reference to the contents- of. said written statements, for the reason that the same was a privileged communication, made by defendant while under arrest and unwarned, and was inadmissible, irrelevant, and immaterial for any purpose, which objections being overruled, appellant stated that he wrote the statements in the books about two weeks before he got into this trouble, and part of it the night before the killing; that he wrote in said books that he had intercoursé with the girl; that this statement was true.” The explanation of the court to the bill is that defendant had repeatedly stated, in answer to questions propounded by counsel, that the slanderous statements imputed to him were untrue, and that he had never made any such state ment about Hora Williams; that he had sought a meeting with deceased, Williams, to convince him that he was innocent of all such charges. Whereupon State’s counsel asked if he did not write the matters in said books, and defendant admitted that he did. The court did not allow any o'f said written matter in evidence to the jury, and, notwithstanding all of said matters were put in evidence by defendant himself, the court charged the jury not to consider any evidence connected with said slander, except as tending to show motive. We do not think that the evidence above elicited comes within the rule of privileged communications. There is no pretense that anyone except appellant testified about this matter. Certainly a statement that appellant may have prepared, which he intended to give his counsel the next day, which statement is found upon his person when arrested for this homicide, could not be regarded as a privileged communication. And furthermore, the testimony was admissible for the reasons stated by the court.

[Note.—Appellant’s motion for rehearing was overruled without a written opinion on May 9, 1900.—Reporter.]

Appellant’s special charge number 1 complains of the court’s failure to charge on manslaughter. The evidence, in our opinion, does not raise the issue.

Special charge number 2 is as follows: “You are further instructed that if, at the time defendant shot and killed M. M. Williams, it reasonably appeared to defendant, from his standpoint at the time, viewed in the light of all the facts and circumstances as they then appeared or were known to defendant at such time, that he was in immediate danger of serious bodily harm or of loss of life at the hands of deceased, or of deceased and other person or persons acting with deceased, then you will acquit defendant.” We do not think that there is any evidence raising this issue. On the issue of self-defense, the court charged the jury on the law applicable to the facts. The testimony of appellant is, in substance, that deceased had made an assault upon him with a rock, and was continuing said assault at the time of appellant’s shooting, and this phase of the law is submitted in the charge. There is no testimony presenting any other character of danger than an immediate effort on the part of deceased to do appellant bodily harm. Hence there was no error in the court refusing appellant’s special charge number 2.

Special charge number 3, so far as the same is applicable, was covered by the main charge of the court. The evidence is conclusive to our minds that appellant is guilty as charged in the indictment; that the killing was the legitimate outgrowth of wanton slander upon the fair name of the daughter of deceased, and that appellant at the time he fired the shot had no reason to fear, and in fact did not fear, any character or kind of assault upon his person; that the killing was upon express malice aforethought, and appellant deserved the highest penalty of the law. The judgment is therefore in all things affirmed.

Affirmed.