Lipscomb, J.
At the Spring Term of the District Court for the County of Galveston and Republic of Texas, 1845, the Grand Jurors for the said county returned a true bill to an indictment preferred against the appellant, charging him with murder. The appellant had left the country immediately after the alleged murder, and before the finding of the bill by the Grand Jury as stated above, and wa;s not arrested until some time in the year 1853 ; and then, he was arrested in the State of South Carolina, and was brought back to Texas on the requisition of the Governor of Texas, and the June Term last, was tried before the District Court for the County of Galveston, and found guilty of murder in the first degree, by the verdict of the jury, on which verdict judgment of death was rendered from which judgment the prisoner appealed.
The first ground relied upon by the counsel for the appellant is, that the proceedings in the Court were not conducted as required by the State Constitution, and are therefore null [426]*426and void, and cannot be carried into effect. The offence was committed and the proceedings and the indictment, upon which the conviction was had, were before Annexation and the formation of the Republic of Texas into a State of the confederacy. The Constitution of the State, Art. 13, Sec. 2, provides “ That all criminal prosecutions or penal actions, which “ shall have arisen prior to the organization of the State gov- “ ernment under this Constitution, in any of the Courts of the “ Republic of Texas, shall be prosecuted to judgment and exe- “ cution in the name of said State.” It is alleged that the record in this case shows a disregard to the provision of the Constitution just cited ; that the proceedings were really and in truth conducted not in the name of the State, but in the name of the Republic of Texas.
In this, however, we believe the counsel for the appellant is mistaken. The indictment was found and returned under the Republic; process was issued in the name of the Republic; returned not executed ; the title of the case on the docket, as originally made, was the Republic of Texas v. John Shultz, and after the return of the capias not found, there was no judicial action in the case, until an application was made to the District Court of the State for an order for a writ of venire facias, to summon a jury to try the accused. This application was made in the name of the State, by the State’s prosecuting officer, to the State Court, then in session. The venire was awarded and issued in the name of the State. We have said that after the return of the capias not found, there does not appear to have been any judicial action of the Court, until the application above stated was made by the District Attorney for a venire. The record exhibits, as transcribed from the docket, nothing but continuances, after that, without any new heading or statement of the case. The entry of the Republic of Texas against Shultz is made immediately preceding the application of the District Attorney for the venire, but neither the application nor the order have any reference to the statement so made by the Clerk, and the entry was not at all [427]*427necessary to be made, nor was there any necessity of making any statement of the case whatever, as the action of the Court makes no reference to any. It was at most an unofficial act of the Clerk, that could exert no influence whatever on the proceedings of the Court, and the action then sought by the District Attorney for the State. The same may be said in every other case where the prosecution has been designated by the Clerk, as the prosecution of the Republic of Texas v. John Shultz. The clerical act of stating the name of the prosecution, cannot be regarded as the proceedings or the acts of the Court; and perhaps, for the sake of convenience, that endorsement of the name of the prosecution, not of the proceedings or acts of the Court, was as proper and convenient as any other, because it was not necessary to the validity of the pro - ceedings, that there should have been any statement. We believe that in the action and proceedings of the Court, after the adoption of the Constitution, it was in the name of the State.
Secondly, it is contended that the Court erred in refusing to give the charge asked, and in the qualification with which it was given.' The prisoner’s counsel requested the Court to charge the jury: “If, confining yourselves to the evidence “ which has been introduced and basing your reflections on “ that evidence alone, a reasonable doubt should remain upon “ your minds as to the guilt or innocence of the prisoner, it is “ your duty to acquit him.” This charge was qualified by the Court in its general charge, and was, on that ground, not given as asked by the counsel for the prisoner. The Judge instructed the Jury, in his general charge, “ if the jury entertain a reasonable doubt of the guilt of the prisoner, they will give him the benefit of that doubt.” The charge, as given, on the effect of a reasonable doubt, is in the precise language of many of the books of evidence. The Judge may well have refused the charge as precisely asked, and preferred the adoption of the language used by him, because it was less complicated, and referred to doubts only, whereas the charge as asked [428]*428was double, embracing the duty of the jury in relation to the basis of their conclusion, as well as to the effect of a reasonable doubt.
As to the first part, where reference is had to another part of the general charge, which we will notice, it will be seen that the charge could afford no ground of complaint on the part of the prisoner, because it was more favorable to him than the law strictly authorized. It will be seen, from the facts proven, that there was no doubt as to the fact that the murder had been committed, and the only question was as to the perpetrator, and as to that, it rested on circumstantial evidence. The Court charged the jury: “ It is essential that the circumstances proved should to a moral certainty actually exclude u every hypothesis that the act may have been committed by “ another person, known or unknown.” In this ruling the jury are instructed to base their opinion upon circumstances actually proven, and further, that if by any assumed hypothesis, the act may have been committed by another person, they cannot convict. This, though not the language of the charge, is its legal effect. We do not object to the first part of the charge as to proof of the facts; it is strictly correct, and instructs them not to rely on circumstances not proven. The latter part of the charge, we believe to be wrong, though it was an error favorable to the prisoner. We believe that Mr. Starkie was the first to lay down the rule as given by the Judge, and he may have been followed by others. It is difficult to believe that Mr. Starkie ever could have intended to be understood to mean “ any hypothesis that could be imagined,” but that his rule was carelessly and without reflectibn penned. We believe that the rule should be qualified by adding, any reasonable hypothesis consistent with the circumstances and facts proven; that the supposition that the act may have been committed by another person, must harmonize with the evidence. We believe, therefore, the prisoner had no ground of complaint against the charge of the Court.
The Court was clearly right in charging the jury, that they [429]*429had nothing to do with the question of the prisoner’s then sanity.
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Lipscomb, J.
At the Spring Term of the District Court for the County of Galveston and Republic of Texas, 1845, the Grand Jurors for the said county returned a true bill to an indictment preferred against the appellant, charging him with murder. The appellant had left the country immediately after the alleged murder, and before the finding of the bill by the Grand Jury as stated above, and wa;s not arrested until some time in the year 1853 ; and then, he was arrested in the State of South Carolina, and was brought back to Texas on the requisition of the Governor of Texas, and the June Term last, was tried before the District Court for the County of Galveston, and found guilty of murder in the first degree, by the verdict of the jury, on which verdict judgment of death was rendered from which judgment the prisoner appealed.
The first ground relied upon by the counsel for the appellant is, that the proceedings in the Court were not conducted as required by the State Constitution, and are therefore null [426]*426and void, and cannot be carried into effect. The offence was committed and the proceedings and the indictment, upon which the conviction was had, were before Annexation and the formation of the Republic of Texas into a State of the confederacy. The Constitution of the State, Art. 13, Sec. 2, provides “ That all criminal prosecutions or penal actions, which “ shall have arisen prior to the organization of the State gov- “ ernment under this Constitution, in any of the Courts of the “ Republic of Texas, shall be prosecuted to judgment and exe- “ cution in the name of said State.” It is alleged that the record in this case shows a disregard to the provision of the Constitution just cited ; that the proceedings were really and in truth conducted not in the name of the State, but in the name of the Republic of Texas.
In this, however, we believe the counsel for the appellant is mistaken. The indictment was found and returned under the Republic; process was issued in the name of the Republic; returned not executed ; the title of the case on the docket, as originally made, was the Republic of Texas v. John Shultz, and after the return of the capias not found, there was no judicial action in the case, until an application was made to the District Court of the State for an order for a writ of venire facias, to summon a jury to try the accused. This application was made in the name of the State, by the State’s prosecuting officer, to the State Court, then in session. The venire was awarded and issued in the name of the State. We have said that after the return of the capias not found, there does not appear to have been any judicial action of the Court, until the application above stated was made by the District Attorney for a venire. The record exhibits, as transcribed from the docket, nothing but continuances, after that, without any new heading or statement of the case. The entry of the Republic of Texas against Shultz is made immediately preceding the application of the District Attorney for the venire, but neither the application nor the order have any reference to the statement so made by the Clerk, and the entry was not at all [427]*427necessary to be made, nor was there any necessity of making any statement of the case whatever, as the action of the Court makes no reference to any. It was at most an unofficial act of the Clerk, that could exert no influence whatever on the proceedings of the Court, and the action then sought by the District Attorney for the State. The same may be said in every other case where the prosecution has been designated by the Clerk, as the prosecution of the Republic of Texas v. John Shultz. The clerical act of stating the name of the prosecution, cannot be regarded as the proceedings or the acts of the Court; and perhaps, for the sake of convenience, that endorsement of the name of the prosecution, not of the proceedings or acts of the Court, was as proper and convenient as any other, because it was not necessary to the validity of the pro - ceedings, that there should have been any statement. We believe that in the action and proceedings of the Court, after the adoption of the Constitution, it was in the name of the State.
Secondly, it is contended that the Court erred in refusing to give the charge asked, and in the qualification with which it was given.' The prisoner’s counsel requested the Court to charge the jury: “If, confining yourselves to the evidence “ which has been introduced and basing your reflections on “ that evidence alone, a reasonable doubt should remain upon “ your minds as to the guilt or innocence of the prisoner, it is “ your duty to acquit him.” This charge was qualified by the Court in its general charge, and was, on that ground, not given as asked by the counsel for the prisoner. The Judge instructed the Jury, in his general charge, “ if the jury entertain a reasonable doubt of the guilt of the prisoner, they will give him the benefit of that doubt.” The charge, as given, on the effect of a reasonable doubt, is in the precise language of many of the books of evidence. The Judge may well have refused the charge as precisely asked, and preferred the adoption of the language used by him, because it was less complicated, and referred to doubts only, whereas the charge as asked [428]*428was double, embracing the duty of the jury in relation to the basis of their conclusion, as well as to the effect of a reasonable doubt.
As to the first part, where reference is had to another part of the general charge, which we will notice, it will be seen that the charge could afford no ground of complaint on the part of the prisoner, because it was more favorable to him than the law strictly authorized. It will be seen, from the facts proven, that there was no doubt as to the fact that the murder had been committed, and the only question was as to the perpetrator, and as to that, it rested on circumstantial evidence. The Court charged the jury: “ It is essential that the circumstances proved should to a moral certainty actually exclude u every hypothesis that the act may have been committed by “ another person, known or unknown.” In this ruling the jury are instructed to base their opinion upon circumstances actually proven, and further, that if by any assumed hypothesis, the act may have been committed by another person, they cannot convict. This, though not the language of the charge, is its legal effect. We do not object to the first part of the charge as to proof of the facts; it is strictly correct, and instructs them not to rely on circumstances not proven. The latter part of the charge, we believe to be wrong, though it was an error favorable to the prisoner. We believe that Mr. Starkie was the first to lay down the rule as given by the Judge, and he may have been followed by others. It is difficult to believe that Mr. Starkie ever could have intended to be understood to mean “ any hypothesis that could be imagined,” but that his rule was carelessly and without reflectibn penned. We believe that the rule should be qualified by adding, any reasonable hypothesis consistent with the circumstances and facts proven; that the supposition that the act may have been committed by another person, must harmonize with the evidence. We believe, therefore, the prisoner had no ground of complaint against the charge of the Court.
The Court was clearly right in charging the jury, that they [429]*429had nothing to do with the question of the prisoner’s then sanity. That question had been very properly previously submitted to a jury, as a collateral issue, and it had been found that he was sane. There was no question raised as to the sanity of the prisoner, at the time the murder was alleged to have been perpetrated.
The remaining is by far the most important question presented for our consideration. Is the evidence presented by the record, sufficient to support the verdict of the jury ? We have before said that there is no positive evidence shown by the record, fixing the fact of the perpetration of the killing, upon the prisoner, and that if the verdict of guilty can be sustained at all, it will be on circumstantial evidence alone.
There has been a great deal written upon this branch of criminal evidence. It will be recollected by the senior members of the profession, that a book on evidence was published, with a ponderous appendix filled with cases, real or supposed, of the disastrous results of convictions based upon circumstantial evidence. It has never been supposed that this appendix of human frailty added anything to either the mass of professional knowledge, or to the cause of humanity, because the human understanding is and always will be imperfect and liable to erroneous conclusions. But we are bound to act from its dictates, however fallible they may be. It is admitted by all, that circumstantial evidence, when fully and conclusively made out, is sufficient to sustain a conviction for murder. The circumstance or circumstances must not be of a vague, indefinite, shadowy character, but the facts constituting the circumstances must be clearly defined and fully proved, and, in general, when so defined, the more there may be of them and the longer the chain connecting them together, the stronger and more confident will be the conclusion. To illustrate, in part, this proposition, by a reference to the evidence in the record: suppose that the evidence did not connect itself with the prisoner, further back than when he was seen with the murdered men by Mr. Power, the evening before, about twenty miles [430]*430from Virginia Point. He would appear to be a stranger, merely travelling to the same point, unconnected by any social relation or community of object, and therefore his being seen the morning after the murder, prosecuting his journey separate and apart from them, would not be so strong a circumstance of his guilt, and of his identity, as it will when connected with the previous facts of his having been in the employment for some time of one of the murdered men, being with him, and enjoying the friendly relations with him, his starting with him from Gonzales, with the object of going to Hew Orleans; when the chain is so connected, it would seem difficult for the candid human mind, in the absence of all explanation, to arrive at any other conclusion, than that the deed had been perpetrated by him.
There are other circumstances, besides: the fact of his appearing alone at Virginia Point the morning after the murder was committed, the fact of the mules of the murdered men being in sight from where he was at Virginia Point, and his anxiety and constant looking back in that direction, are all far from being light and immaterial. How he must have known the mules belonging to his travelling companions, after travelling so far with them, yet no expression of surprise escaped him, that they had not come up. If innocent, he would have enquired the cause of such delay, because he had ample time to ride back a mile, the distance to the place where the men were murdered, however great his wish might have been not to lose the passage by the packet, because early in the morning, by sunrise, he was told the packet would not leave until the son of the Captain of the packet reached it, who was then present, and they did not leave until 10 o’clock, all of which time the prisoner remained outside of the house, refusing breakfast and coffee when offered to him, and manifesting the same anxiety and restlessness as exhibited on his first arrival, and never once saying anything about his absent travel-ling companions.
The circumstance too, sworn to by one of the witnesses, that [431]*431the bed made at the camp where the bodies were found, having been made for three personé, we consider as material. A person accustomed to camp, can form a very correct judgment, very often, from the appearance of the camp bed, how many persons occupied the bed. This may be apparent by the heading, and various other manifestations, that would escape the notice of one unaccustomed to such life.
Taking the circumstances all together, as proved, we can perceive no reasonable hypothesis, consistant with the facts proven, from which it could be inferred that the murder was committed by some other person known or unknown. And we find no error in the record. The judgment is therefore affirmed.
Judgment affirmed.