OPINION OF WILLSON, JUDGE.
Willson, Judge.
I. This appeal is from a conviction of murder in the first degree, the penalty assessed being death. It is charged in. the indictment that the homicide was committed with “ malice aforethought ” by shooting the deceased with pistols. Evidence was admitted, over the objections of the defendant, which tends strongly to show that the homicide was committed in an attempt by defendant and two others to perpetrate the crime of robbery. After stating in the charge the general statutory definition of murder, the court instructed the jury that all murder committed in the perpetration of, or in the attempt to perpetrate, robbery, .is murder in the first degree, and then proceeded to define robbery, and an attempt to rob.
[497]*497. It is earnestly ancl ably argued by defendant’s counsel that this charge as to robbery, and attempt to rob, is erroneous. In support of this position counsel submits the following propositions:
, “ 1. "When one is charged with an offense, all the facts constituting the res geste» may be proven to show the nature of the transaction. They are useful to show whether or not the accused is guilty of the specific offense alleged, but do not authorize the court to give a charge that he may be convicted of. an offense proven, it may be, by the res gestee, but different from that wherewith he is charged.
“ 2. Murder with express malice is a species of murder of the first degree. Murder with intent to rob is also a species of murder of the first degree, and may be committed under circumstances which show the element of express malice to be entirely absent. Therefore, when one is charged with murder upon express malic'e, a charge that he may be convicted of murder in the first degree, simply because the murder was committed in the attempt to rob, is • illegal. Every defendant is entitled to know the nature and cause of .the accusation against him. Express malice and the intent to rob are not necessarily concomitant.”
Counsel for defendant concedes that in Roach v. The State, 8 Texas Ct. App., 491, the precise question now presented was distinctly met and decided. In that case the indictment charged that the homicide was committed with express malice aforethought. Evidence tending to disclose a robbery as the motive inducing the homicide was admitted, and the court, as in this case, charged the jury “that all murder committed in the perpetration, or in the attempted perpetration, of the crime of robbery is murder in the first degree.” It was held that there was no error in admitting the evidence as to the robbery, nor in giving the charge in relation thereto.
In the opinion in that case the preceding cases bearing upon the question are cited and reviewed at length, and the conclusions of the court are announced as follows: “ When express malice is alone charged, the pleader may show, in support of the indictment, not only violence done to the person, but robbery, or an attempt to perpetrate robbery, or any other of the specific exceptional modes named; because they are not inconsistent with, but, on the contrary, would be legitimate for the purpose of establishing the express malice aforethought. When a murder by violence and upon express malice aforethought is charged, then the prosecution may show, as part of the res geste», that it was also done (if such were the fact) in the perpetration, or in the attempt at the perpetration, of either arson, rape, robbery or burglary. It follows that the evidence in [498]*498this case, being of a character tending legitimately to show that the murder was committed in the perpetration, or in the attempt at the perpetration, of robbery, the court did not err in the portion of the charge complained of, but the same was a part of the law as made necessary by the evidence adduced in the case.
It will be observed that in the Boach case (supra) the indictment alleged that the homicide was committed with “express malice aforethought,”' while in the case before us the allegation is “ malice aforethought.” In the opinion of the writer the conclusions of the court above quoted, as to the charge of the court, are not entirely consistent with the doctrine stated in Tooneyh case, 5 Texas Ct. App., 163. In Tooney’s case, it is correctly said: “ A charge, to be legal, that is, to 6 present the law applicable to the case,’ must meet and be limited by the case as set forth and pleaded in the indictment. The charge must conform to and correspond with the allegations. To go outside of and beyond them, in submitting other issues, is not only calculated to mislead the jury, but also calculated to injure the rights of the defendant, by making them depend upon matters he could not be prepared to meet, because he was not notified that they would be urged against him.” And in accordance with this rule, in that case, where the indictment alleged a murder by poisoning, it was held error for the court to charge as to a murder committed in the perpetration or attempted perpetration of robbery. Murder with express malice is one of the specific kinds of murder in the first degree named in the statute, as much so as murder by poison, starvation, torture, or in the perpetration or attempted perpetration of some one of the crimes mentioned. It seems to the writer that where the pleader unnecessarily alleges that the murder is one committed with express malice, he thereby alleges one of the distinct species of murder in the first degree, and to that particular kind of murder the charge of the court should be confined. Such an allegation, in my opinion, excludes every other species of murder in the first degree, and a conviction for that species and no other can be had in such case.
But, however this may be, that question does not arise ín'this casé, because the indictment alleges none of the species of murder in the first degree, but alleges murder in the first degree generally, that is, a homicide with malice aforethought, thus alleging in effect all kinds or species of murder in the first degree, that could be committed by the means alleged, that is, by shooting. (See People v. Soto, 63 Cal., 165.) It is, therefore, the opinion of a majority of the court, that in this case it was not error to admit evidence to prove [499]*499an attempted robbery, nor to instruct the jury in relation thereto in the statutory language made use of by the court in its charge.
II. It is further objected to the charge that it does not instruct the jury as to the law of circumstantial evidence. This objection is clearly not tenable, because the evidence establishing defendant’s guilt is direct and positive, and not of a circumstantial character. The law of circumstantial evidence should not be charged except in cases where the State relies solely upon that character of evidence to obtain a conviction. (Hart v. The State, 15 Texas Ct. App., 202; Buntain v. The State, Id., 515.)
III. Again, it is objected to the charge that it instructed the jury that express malice may be evidenced by external circumstances, etc. It is contended that this is a charge upon the weight of evidence; that the court should have defined express malice, and then left the jury to determine as to how it might be proved or evidenced. We cannot concede the correctness of this objection.
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OPINION OF WILLSON, JUDGE.
Willson, Judge.
I. This appeal is from a conviction of murder in the first degree, the penalty assessed being death. It is charged in. the indictment that the homicide was committed with “ malice aforethought ” by shooting the deceased with pistols. Evidence was admitted, over the objections of the defendant, which tends strongly to show that the homicide was committed in an attempt by defendant and two others to perpetrate the crime of robbery. After stating in the charge the general statutory definition of murder, the court instructed the jury that all murder committed in the perpetration of, or in the attempt to perpetrate, robbery, .is murder in the first degree, and then proceeded to define robbery, and an attempt to rob.
[497]*497. It is earnestly ancl ably argued by defendant’s counsel that this charge as to robbery, and attempt to rob, is erroneous. In support of this position counsel submits the following propositions:
, “ 1. "When one is charged with an offense, all the facts constituting the res geste» may be proven to show the nature of the transaction. They are useful to show whether or not the accused is guilty of the specific offense alleged, but do not authorize the court to give a charge that he may be convicted of. an offense proven, it may be, by the res gestee, but different from that wherewith he is charged.
“ 2. Murder with express malice is a species of murder of the first degree. Murder with intent to rob is also a species of murder of the first degree, and may be committed under circumstances which show the element of express malice to be entirely absent. Therefore, when one is charged with murder upon express malic'e, a charge that he may be convicted of murder in the first degree, simply because the murder was committed in the attempt to rob, is • illegal. Every defendant is entitled to know the nature and cause of .the accusation against him. Express malice and the intent to rob are not necessarily concomitant.”
Counsel for defendant concedes that in Roach v. The State, 8 Texas Ct. App., 491, the precise question now presented was distinctly met and decided. In that case the indictment charged that the homicide was committed with express malice aforethought. Evidence tending to disclose a robbery as the motive inducing the homicide was admitted, and the court, as in this case, charged the jury “that all murder committed in the perpetration, or in the attempted perpetration, of the crime of robbery is murder in the first degree.” It was held that there was no error in admitting the evidence as to the robbery, nor in giving the charge in relation thereto.
In the opinion in that case the preceding cases bearing upon the question are cited and reviewed at length, and the conclusions of the court are announced as follows: “ When express malice is alone charged, the pleader may show, in support of the indictment, not only violence done to the person, but robbery, or an attempt to perpetrate robbery, or any other of the specific exceptional modes named; because they are not inconsistent with, but, on the contrary, would be legitimate for the purpose of establishing the express malice aforethought. When a murder by violence and upon express malice aforethought is charged, then the prosecution may show, as part of the res geste», that it was also done (if such were the fact) in the perpetration, or in the attempt at the perpetration, of either arson, rape, robbery or burglary. It follows that the evidence in [498]*498this case, being of a character tending legitimately to show that the murder was committed in the perpetration, or in the attempt at the perpetration, of robbery, the court did not err in the portion of the charge complained of, but the same was a part of the law as made necessary by the evidence adduced in the case.
It will be observed that in the Boach case (supra) the indictment alleged that the homicide was committed with “express malice aforethought,”' while in the case before us the allegation is “ malice aforethought.” In the opinion of the writer the conclusions of the court above quoted, as to the charge of the court, are not entirely consistent with the doctrine stated in Tooneyh case, 5 Texas Ct. App., 163. In Tooney’s case, it is correctly said: “ A charge, to be legal, that is, to 6 present the law applicable to the case,’ must meet and be limited by the case as set forth and pleaded in the indictment. The charge must conform to and correspond with the allegations. To go outside of and beyond them, in submitting other issues, is not only calculated to mislead the jury, but also calculated to injure the rights of the defendant, by making them depend upon matters he could not be prepared to meet, because he was not notified that they would be urged against him.” And in accordance with this rule, in that case, where the indictment alleged a murder by poisoning, it was held error for the court to charge as to a murder committed in the perpetration or attempted perpetration of robbery. Murder with express malice is one of the specific kinds of murder in the first degree named in the statute, as much so as murder by poison, starvation, torture, or in the perpetration or attempted perpetration of some one of the crimes mentioned. It seems to the writer that where the pleader unnecessarily alleges that the murder is one committed with express malice, he thereby alleges one of the distinct species of murder in the first degree, and to that particular kind of murder the charge of the court should be confined. Such an allegation, in my opinion, excludes every other species of murder in the first degree, and a conviction for that species and no other can be had in such case.
But, however this may be, that question does not arise ín'this casé, because the indictment alleges none of the species of murder in the first degree, but alleges murder in the first degree generally, that is, a homicide with malice aforethought, thus alleging in effect all kinds or species of murder in the first degree, that could be committed by the means alleged, that is, by shooting. (See People v. Soto, 63 Cal., 165.) It is, therefore, the opinion of a majority of the court, that in this case it was not error to admit evidence to prove [499]*499an attempted robbery, nor to instruct the jury in relation thereto in the statutory language made use of by the court in its charge.
II. It is further objected to the charge that it does not instruct the jury as to the law of circumstantial evidence. This objection is clearly not tenable, because the evidence establishing defendant’s guilt is direct and positive, and not of a circumstantial character. The law of circumstantial evidence should not be charged except in cases where the State relies solely upon that character of evidence to obtain a conviction. (Hart v. The State, 15 Texas Ct. App., 202; Buntain v. The State, Id., 515.)
III. Again, it is objected to the charge that it instructed the jury that express malice may be evidenced by external circumstances, etc. It is contended that this is a charge upon the weight of evidence; that the court should have defined express malice, and then left the jury to determine as to how it might be proved or evidenced. We cannot concede the correctness of this objection. To tell the jury that a certain fact may be inferred upon proof of certain other facts is not alxvays a charge upon the xveight of evidence, and is not, in our opinion, an objectionable charge in cases like this. This charge is in the exact language of the laxv, and is in fact a part of the definition of express malice as given by all authors on criminal law. It has almost invariably been given in murder trials, and has repeatedly passed the scrutiny of the bench and the bar, unquestioned. (Jordan v. The State, 10 Texas, 479; McCoy v. The State, 25 Texas, 83; Plasters v. The State, 1 Texas Ct. App., 673; Cox v. The State, 5 Texas Ct. App., 493; Summers v. The State, Id., 365; Whart. on Homicide, § 671; 1 Whart. Cr. Laxv, § 381.)
IV. Defendant was indicted, jointly xvith two others, for the murder of which he was convicted. A special venire for sixty persons to serve as jurors in the case was ordered, issued, and executed .in accordance with the statute. When the case was called for trial a severance was had, and the other two defendants, each separately, were tried before this defendant was tried, and in said previous trials the persons summoned on said special venire were tested and passed upon as jurors in each of said causes. When this case was called for trial, the defendant moved the court to require another special venire to be issued for persons to serve as jurors in this case. This motion the court declined to grant. In an explanation appended to the bill of exception presenting this question, the trial , judge says: “ After the trial of the co-defendant George (the defendant first tried), recognizing the difficulty or uncertainty of obtaining a jury, considering the peremptory exceptions of the parties as exhibited in [500]*500the trial of George, the court proffered, if the defendant Sharp would agree, to order another special venire, but the defendant declined to so agree,” etc. We perceive no error in this action of the court. The special venire had been regularly issued and executed in the case, and until it was exhausted, or discharged by the defendant’s consent, the court had no power to order the issuance and execution of another venire. (Harrison v. The State, 3 Texas Ct. App., 558.)
Y. Defendant’s challenge of the jurors Shropshire and Thompson, for cause, was properly overruled.. It appeared from their answers that, while they had heard and read about the homicide, there was not established in their minds, from, hearsay or otherwise, any conclusion as to the guilt or innocence of the accused, such as would influence their verdict. We think the jurors were qualified to try the case. (Ellison v. The State, 12 Texas Ct. App., 557.)
We.have discussed all of the supposed errors complained of by the defendant, and to each of which, as well as to the entire record, we have given careful consideration. We have discovered no material error in the proceedings and conviction, and the evidence and the law demand that the verdict of the jury should stand, and that the defendant should suffer the punishment assessed against him for the atrocious murder of which he is undoubtedly guilty. The judgment is affirmed.
Affirmed.
[Opinion delivered January 31, 1885.]