Willson, Judge.
This appeal is from a conviction of murder in the first degree—the murder of one W. B. Mathis—the penalty assessed being confinement in the penitentiary for life.
1. A motion in arrest of judgment having been made by defendant, and overruled by the court, which motion is based upon alleged defects in the indictment, it is proper that we should first consider and dispose of the questions presented by the motion.
After alleging, in the usual form, an assault upon W. B. Mathis, the indictment proceeds, “and that he, the said Lee Walker, him, the said W. B. Mathis, in some way and manner, and by some means, instruments and weapons to the grand jurors unknown, did then and there feloniously, wilfully and of [627] his express malice aforethought, deprive of life,, so that he, the said W. B. Mathis, then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say and present that he, the said Lee Walker, him, the said W. B. Mathis, in manner and form aforesaid, feloniously, wilfully, by and of his express malice aforethought, did then and there kill and murder.”
In two particulars, it will be noticed, this indictment is unusual in form. 1. It does not allege the means, instrument or weapon with which the murder was effected. 2. Instead of alleging in the language of the statute that the defendant did kill the deceased, it substitutes the words did “ deprive him of life.”
As to the first mentioned peculiarity, it is well settled that it is sufficient to allege that the murder was committed “ in some way or manner, and by some means, instruments and weapons, to the jurors unknown.” (Com. v. Webster, 5 Cushing’s Rep., 295; State v. Wood, 53 R. H., 484; State v. Burke, 54 R. EL, 92; State v. Williams, 7 Jones, R. C., 446; People v. Cronin, 34 Cal., 191; People v. Martin, 47 Cal., 96; Com. v. Martin, 125 Mass., 394; 1 Whart. Prec., 114; Whart. Cr. Ev., sec. 93; 1 Arch. Cr. Prac, and Pl., 787, note 1.)
As to the second, we are of opinion that the words “ deprive of life” are equivalent to the word “kill,” and, even if they were not, the concluding portion of the indictment distinctly charges that the defendant did kill and murder the deceased.
We think the indictment, though departing from the usual form, in the particulars we have mentioned, is sufficient, and that the motion in arrest of judgment was properly overruled. (Dwyer v. The State, 12 Texas, 535.)
2. Upon the trial certain letters and other writings were introduced in evidence by the prosecution, mainly upon the testimony of a witness who was permitted to testify, as an expert, that in his opinion the letters and other writings were in the handwriting of the defendant. This witness based his opinion upon having once seen the defendant write his name, and upon comparing the letters and other writings introduced in evidence with a certain letter which the prosecution claimed had been established as the writing of the defendant. These letters and other writings were objected to by the defendant upon the ground that the handwriting used by the witness as a standard of comparison was not sufficiently established as the writing of [628] the defendant. We are of the opinion that the standards of comparison were clearly established in full compliance with the rules of law governing in such cases. (Eborn v. Zimpelman, 47 Texas, 503; Phillips v. The State, 6 Texas Ct. App., 364; Hatch v. The State, 6 Texas Ct. App., 384; Heacock v. The State, 13 Texas Ct. App., 97.) So question is made as to the competency of the witness to testify as an expert. He fully qualified himself to testify in that capacity. We are clearly of the opinion that the court committed no error in admitting the evidence objected to by the defendant.
3. It is objected to the charge of the court that it should not have embraced murder in the first degree; that there was no evidence proving or tending to prove express malice on the part of the defendant, and that therefore the charge should have been confined to murder in the second degree. While express malice must be proved and cannot be inferred, still, like other facts, it may be proved by circumstantial evidence. Its actual existence is manifested by external acts, and these external acts or circumstances may transpire before, at the time of, or immediately after the killing. (McCoy v. The State, 25 Texas, 33; Gaitan v. The State, 11 Texas Ct. App., 544; Jackson v. The State, 9 Texas Ct. App., 114; Richarte v. The State, 5 Texas Ct. App., 359.)
It is not required that express malice should be demonstrated to mathematical certainty by the evidence; all that is required is that the evidence be such as is reasonably sufficient to satisfy and convince the jury of its existence. We think the evidence in this case not only authorized, but required the court to charge upon murder in the first degree. If the defendant killed Mathis, the evidence, in our opinion, would well warrant a verdict that he committed the act with express malice. It was a question for the jury alone to determine, and the learned trial judge was correct in submitting to them the issue. We find no error in the very able and impartial charge of the trial judge.
4. We come now to the consideration of the most serious and difficult question in this case, and that is: Does the evidence support the verdict of the jury? It is insisted by the Assistant Attorney General that it was the peculiar province of the jury to determine the facts, and that this court has no authority to Bet aside the verdict where there is any evidence to sustain it; and he contends that there is sufficient evidence to sustain the verdict in this case.
[629] With reference to the authority of this court to set aside a verdict when that verdict is, in our judgment, against the weight of the evidence, or not supported by it, we think the statute confers it. Article 870 of the Code of Criminal Procedure provides: “ The Court of Appeals may revise the judgment in a criminal action, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of evidence, the same shall, in all cases, be remanded for a new trial.”
With reference to trials by jury it is provided: “The jury are the exclusive judges of the facts in every criminal cause.” (Code Crim. Proc., Art. 676.) And again it is provided: “The jury in all cases are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except,” etc. (Code Crim. Proc., Art. 728.)
While Article 870, above quoted, expressly confers the authority to revise the facts, and to reverse the judgment for the reason that the verdict is contrary to the weight of evidence, it has been the general practice of this court to refuse to set aside a verdict where the evidence was conflicting, but where there was sufficient, if believed, to support the finding. (Addison v. The State, 3 Texas Ct. App., 40; March v. The State, Id., 335; Lockhart v. The State, Id., 567; Blake v. The State, Id., 581; Baltzeager v. The State, 4 Texas Ct. App., 532; Reardon v. The State, Id., 602; Ridout v. The State, 6 Texas Ct. App., 249; Slaughter v. The State, 7 Texas Ct. App., 123; Brown v. The State, 8 Texas Ct. App., 48; Douglass v. The State, Id., 520; Bright v. The State, 10 Texas Ct. App., 68; Jones v. The State, 12 Texas Ct. App., 156.)
But even in such case, where it was manifest that the verdict was wrong, and it was clear that injustice had been done the defendant, it has been set aside, though there was evidence sufficient to support it. (March v. The State, 3 Texas Ct. App., 335; Lockhart v. The State, Id., 567; Blake v. The State, Id., 581; Templeton v. The State, 5 Texas Ct. App., 398; Gamble v. The State, Id., 421; Johnson v. The State, Id., 423.)
And it has never been doubted, but has always been considered by this court, not only that it had the authority, but that it was its duty to set aside a verdict where that verdict was contrary to the evidence, or unsupported by it, though it is with reluctance that the court will disturb a verdict where there is any evidence to sustain it. (King v. The State, 4 Texas Ct. [630] App., 256; Jones v. The State, 4 Texas Ct. App., 436; Tollett v. The State, 44 Texas, 95; Jones v. The State, 5 Texas Ct, App., 86; Barnell v. The State, Id., 113.) The law “imposes upon the trial court in the first instance, and afterwards on this court, the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of competent evidence as would render it safe to allow the verdict to stand and become a precedent in the adjudication of offenses under the law. The performance of this duty on the part of the court is the exercise of a legal discretion and judgment as to what facts should be sufficient to rebut the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense.”
Numerous cases appear in the Reports, both of our Supreme Court and of this court, where verdicts have been set aside because unsupported by the evidence, or contrary to the weight of the evidence. From a careful consideration of the cases in which this subject has been discussed, we deduce the following rules of practice governing this court, viz.:
First. Where the evidence is conflicting, and there is sufficient, if believed, to prove the case of the State, the jury being the exclusive judges of the credibility of the testimony, their verdict will not be set aside unless it clearly appears to be wrong.
Second. Where there is no testimony to support it, the verdict will be set aside.
Third. Where the evidence is insufficient to rebut the presumption of innocence, the verdict will be set aside.
Fourth. Where the verdict is contrary to the weight of the evidence, it will be set aside.
Believing, therefore, that we are not only authorized, but that it is our duty to pass upon the sufficiency of the evidence to sustain the conviction in this case, we will proceed to a consideration of the facts as presented in the record, for the purpose of answering the question before propounded, “Does the evidence support the verdict of the jury?”
To sustain the conviction, what was the first fact essential to be proved by the prosecution? Evidently, the death of W. B. Mathis, the person charged to have been murdered by the defendant. Upon this fact rests the entire case. It is the groundwork, the foundation of the prosecution, and without this primary fact being clearly established beyond any reasonable doubt, there can be no conviction for any grade of homicide in [631] this case, no matter how cogent may be the other facts proven against the defendant.
Our Penal Code contains this peremptory provision: “No person shall be convicted of any grade of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of killing.” (Penal Code, Art. 549.) At common law, without this provision of our Code, a conviction for homicide would not be warranted until the death of the party charged to have been killed was clearly established, though there was evidence exhibiting satisfactory indications of the guilt of the accused. (Wilson v. The State, 41 Texas, 320; 3 Greenl., sec. 131; Stark. Ev., 862-863; 1 Bish. Crim. Proc., 1056; 2 Hale, 290; 1 Arch. Cr. PI. and Pr., 798.) Mr. Wharton says: “The death should be distinctly proved, either by direct evidence of the fact, by inspection of the body, or by circumstantial evidence strong enough to leave no ground for reasonable doubt.” (Whart. on Hom., 629, et seq.) At common law, however, it was not always essential, as it is under the provision of our Code, which we have cited, for the prosecution to produce and identify the body, or portions of it, of the person alleged to have been killed. (Whart. on Hom., sec. 630; 1 Bish. Crim. Proc., sec. 1057.) But it has always been required that the proof of the death should be clear and satisfactory beyond reasonable doubt, insomuch that not even the extra judicial confession of the accused that he had killed the person charged to have been killed would of itself, uncorroborated by other evidence of the death, be sufficient to warrant a conviction. (1 Bish. Crim. Proc., sec. 1058; Whart. Crim. Ev., 632.)
But, without further considering the subject as governed by the rules of the common law, we will look alone to the express provisions of our Code, by which we must be controlled in determining this question. There is no room to doubt the plain meaning of the provision cited. It requires an identification, by sufficient proof, of the dead body, or portions of it. It is indispensable that a dead body, or portions of a dead body, should be found, and equally as indispensable that, when found, it should be clearly proved to be the body, or portions of it, of the person alleged to have been killed. In the case before us, a portion of the skeleton of a human body was found.
In regard to this skeleton, and the finding of it, the evidence is substantially as follows: About the tenth day of August, 1882, it was found by a witness named Thomas, floating in the Brazos [632] river, at the town of Bichmond, in Fort Bend county. It was floating down the river with the face down, the feet and back partly out of the water, so that witness could see that it was a human body. Witness pulled the body to the bank of the river by means of a rope.- He describes it as follows: “I found that the head, one arm and the other hand were missing; that the body had on two pairs of pants, a pair of drawers, and shoes and socks, and that the upper portion of the body had on no clothes at all. When I dragged the body to the bank some one present raised the question as to whether the body was the body of a white or a black man, and I took a knife that I found in the pants pocket on the body, and split a hole in the clothing on the thigh, and found that it was the body of a white man. The body had on what I took to be ducking pants, over a pair of pants of different material, and the body, when I found it, had some mud on it, and the stomach, bowels and all the entrails were missing, and pretty much all the flesh. The clothes were sound, that is, not torn in any way.”
A witness named Floyd buried the body, and he describes it thus: “The body had on two pairs of pants, a pair of drawers, and shoes and socks.” This witness states that the body he buried was the same one that the witness Thomas took out of the river; that, two weeks after he buried it, Doctor Doyle hired him to dig it up, and Doctor Doyle took from it parts of the clothing, and one of the shoes and one of the socks, and that the socks were striped. Witness identified a shoe exhibited to him at the trial as the shoe that Doctor Doyle took from the body.
Doctor Doyle testified that about the twenty-fifth of August, 1883, he employed the witness Floyd to exhume a dead body at Bichmond, Texas; that the body was without a head or neck: one arm and the shoulder blade of the arm, and the hand from the other arm, were gone; the flesh was all gone from the ribs and body; there was nothing but some tendons about the ribs, but no muscle or flesh, and none in the pants but some corrupt, decayed matter. The body had on two pairs of pants, but no suspenders; the outer pair of pants were of coarse cassimere, woolen, and their color was gray; the under pair of pants were of checked tweeds. The body also had on a pair of ordinary brown drilling drawers; also a pair of ordinary kip shoes, not heavy. Witness cut off a portion of the legs of each of the pairs of pants, and brought them away with him; also one of the shoes [633] and one of the socks on the body; the sock was a culton sock with red stripes two or more inches. in breadth around the top of the sock, and the foot of the sock was red. Witness also ■exhibited a buckhorn handled two bladed knife, larger than medium size, which he stated was taken from the body.
We have recited all the testimony descriptive of the dead body found, and the clothing upon it. It is claimed by the prosecution that this skeleton was the remains of W. B. Mathis, who, it is alleged, was murdered by the. defendant, in Hood county, ■on the twenty-eighth day of April, 1882, about four months prior ■to the time of the finding of this skeleton.
We will now examine the evidence as to the identification of the skeleton found as being that of the alleged murdered man, W. B. Mathis. It is claimed by the State that the defendant murdered Mathis on the night of the twenty-eighth of April, 1882, in Hood county, within a half mile of the Brazos river, and threw the body of deceased into the river, and that the body was carried by the waters of the river to the place where it was found by the witness Thomas, which is proved to be between six and nine hundred miles distant, by the meanderings of the river, from the place where the murder is alleged to have been •committed. If the theory of the prosecution is correct, the body had been conveyed by the river a distance of at least six hundred miles, and was found in the condition it was shown to be in, some four months after the murder. While it is not impossible that the body may have made this long and difficult journey, it is shown by the testimony of two physicians that it was not probable. Doctor Doyle testified “that it was possible that a dead body might float from the one point to the other, but that it was not at all probable.” Doctor Lancaster testified that such .a thing would be possible but not probable.
Thus, we see, the theory of the prosecution, to start with, is based upon an improbability, and hence it is all the more essential that the proof should be clear and convincing that the skeleton found was that of W. B. Mathis. There is no direct evidence establishing it as such.
What are the circumstances relied upon by the State as identifying the skeleton as being that of Mathis? First, that on the night of the twenty-eighth of April, 1882, W. B. Mathis, who was living at the house of defendant’s father, in Hood county, mysteriously disappeared, and has not since been seen or heard from. It is not to be denied that the circumstances in evidence [634] are strongly in favor of the assumption that W. B. Mathis came to his death on the night of the twenty-eighth of April, 1882. His mere disappearance, however, and his not being seen or heard from since, while sufficient to create a presumption that he no longer lives, are far from sufficient to warrant the conclusion that he is certainly dead. He was a young man, not long in this State, a laboring man, and with no family or ties of any kind to cause him to remain in any particular locality, and he might have left his temporary residence and wandered to some distant place, and be yet living. Instances of such disappearances, unaccountable at the time, have often occurred, and years afterward the persons believed to be dead have been found to be still living. But the mysterious disappearance of Mathis, while of itself wholly insufficient to establish the fact of his death, is nevertheless a circumstance tending to prove that fact, and tending also, although in a remote degree, to identify the skeleton found as his remains.
Second. The defendant was in possession of property which belonged to Mathis, soon after the disappearance of the latter, and claimed this property as his own. This fact and many other suspicious acts, declarations, writings and conduct of the defendant, subsequent to the disappearance of Mathis, are claimed as circumstances which not only show that the defendant murdered Mathis, but also tend to identify the skeleton found as that of the murdered man. While such evidence may be perfectly legitimate for the purpose of identification, as well as for the purpose of connecting the defendant with the crime, the fact still remains to be proved by other evidence than this that the remains found were beyond a reasonable doubt the remains of W. B. Mathis.
Third. It is contended by the State that the remains found are identified as those of Mathis by the clothing, etc., upon the same. Let us examine the testimony upon this point. 1. As to the pants: The skeleton had on, when found, two pairs of pants. Witness Thomas, who found the remains, states: “ The body, when I found it, had on what I took to be ducking pants, over a pair of pants of different material.” Witness Floyd, who buried and afterwards exhumed the remains, does not describe the pants. Witness Doctor Doyle, who had the body exhumed, and who preserved a portion of the pants, says: “The outer pair of pants were a coarse cassimere, woolen, of a gray color; the under pair were checked tweeds.” Henry Jones testified. [635] that he saw W. B. Mathis about sundown of the day on which he disappeared, April 28, 1882; that he then had on a pair of ducking pants of the same kind which witness, at the time of testifying, had on, and which were brown cotton ducking. This witness, while testifying, was shown the pieces of pants taken from the body by Doctor Doyle, and testified in regard thereto that he had not seen them before.
It is contended by the State that there is a conflict of evidence in regard to the pants. We do not think so. The witness Thomas does not state positively that the outer pair of pants found upon the remains were of ducking, but only that he “took it to be” ducking. Doctor Doyle states positively that the material of this outer pair of pants was coarse cassimere, woolen, of a gray color, and he not only states this, but produces in court a portion of the pants, demonstrating that the material was cassimere and not ducking. We are therefore forced to the conclusion that the outer pants found upon the remains were not made of cotton ducking, and yet the State’s witness, Jones, who last saw Mathis, and who saw him on the very evening of his disappearance, is positive that he then had on cotton ducking pants, and not cassimere pants, such as were found upon the remains. It cannot be said, therefore, that the outer pants identify the remains as those of Mathis. And as to the other pair of pants found upon the remains, there is no evidence whatever to prove that they belonged to Mathis.
2. As to the brown cotton drawers found upon the remains, there is no proof that Mathis ever had such drawers. His brother testified on the trial that W. B. Mathis had very few clothes; that he bought one pair of cotton flannel drawers after he came to Texas; but he says nothing about his having such drawers as were found upon the remains.
3. As to the shoes, those found upon the remains were ordinary kip shoes, not heavy, and number ten in size. It was proved that W. B. Mathis wore number ten shoes, and the witness Jones, who last saw Mathis, said that he then had on shoes similar to the shoe taken from the remains by Doctor Doyle. Upon this point Jones testified as follóws: “The shoes were of the same kind as the shoe exhibited to me; that is, they look like the same shoe shown me. I cannot say that this is the same shoe. The shoes were of the same kind as this one; that is, they, as this shoe is, were of the kind that tied with a string, not gaiters or button shoes.” This is all the evidence which tends [636] to prove that the shoes upon the remains were the shoes of W. B. Mathis. All that it proves is that Mathis wore shoes, when last seen, of the same quality, make and number as those found upon the dead body, and it is safe to say that at that same date there were five hundred other men in Texas who were wearing shoes in all respects similar to those.
4. As to the socks: The socks found upon the remains were striped cotton socks, with red feet. It is not shown that Mathis had such socks. It was proved by his brother that, when he last saw W. B. Mathis, he had some white woolen home made ■socks. This is all the evidence we have in relation to the socks.
5. As to the knife: There is no evidence identifying the knife found as one belonging to W. B. Mathis. We have now noticed in detail all the evidence of identification afforded by the remains, and we must say that it is not only insufficient to identify the remains found as those of W. B, Mathis, but that, to our minds, it leads to a contrary belief. We are not even informed by the evidence as to the height, size and weight of W. B. Mathis, and as to the height, size and probable weight of the person whose skeleton was found. These facts could certainly have been ascertained and proved, and would have weight in determining the question of identity. An anatomist could ascertain from the skeleton found, almost, if not precisely, the height, size and weight of the individual while living, and would also detect, if it existed, any peculiarity in the conformation of the bones of the body, such as a formerly fractured bone, a misshapen hand, foot, arm, leg, etc., and which peculiarity, if discovered, might lead to the certain identification of the remains. But no effort whatever seems to have been made on the part of the prosecution to adduce any proof of this character, and no reason is assigned why the effort was not made. Doctor Doyle, who testifies that he is a physician, must be presumed to have a knowledge of human anatomy, and he examined the skeleton in .question, yet we are not even told by him what was the size, height, sex or race of the individual who once animated it. (Wilson v. The State, 41 Texas, 320; same case, 43 Texas, 472.)
Fourth. It is claimed that a circumstance of identification ■exists in the fact that the remains, when found, had on no shirt. It was proved that on the twelfth of August, 1882, two shirts were found hidden in the brush on the premises where Mathis is alleged to have been murdered. These shirts were ¡badly mildewed and were quite rotten. They were exhibited.in [637] court on the trial, and J. C. Mathis, the brother of the alleged murdered man, testified in regard to them as follows: “ I recognize the shirt exhibited to me as being exactly like one which I knew my brother had when he was at Doctor Walker’s. My mother made it for him for an undershirt before we left home. It is a home made undershirt. The shirt was small for my brother. The other shirt I know nothing about.” This is all the evidence relating to the shirts. It by no means proves that these garments belonged to Mathis, nor that they were placed where found by the defendant. It certainly does not prove that they had ever clothed the body the remains of which were found more than six hundred miles distant from where the shirts were found.
After a most careful and thorough consideration of all the evidence in- the record, we are compelled to say that, in our judgment, the State failed to prove in the first place that W. B. Mathis is dead, and, in the second place, if in fact he is dead, that the remains found were his. Were it necessary, we could cite many cases stronger in their facts in proof of the corpus delicti than the one before us, where it has been held that the evidence of the death and of the identification of the body were insufficient to warrant a conviction of homicide.
Counsel for defendant, in argument, presented a most important question, which it is not necessary to a disposition of this case that we should definitely determine. We have not had the opportunity to investigate the authorities, if any, which may bear upon it, and we shall go no further at present than merely to call attention to it, leaving its final determination for the future, should the question ever present itself in such a shape as to demand a decisive solution. It is contended that the provision of the Penal Code, Article 549, which we have before quoted, requires not only that the body, or portions of it, shall be identified as that of the alleged murdered man, but that it shall be identified so as to establish the fact of killing; that is, that the body, or the portions of it found and identified, must exhibit evidence sufficient to prove that the individual was killed/ that is, that the death was produced by violence and not by natural causes.
Because, in our opinion, the evidence does not identify the body of the alleged murdered man, and does not establish clearly his death, the judgment is reversed and the cause remanded.
Reversed and remanded,
Opinion delivered October 27, 1883.