Wheeler, J.
The application for a continuance manifestly showed no sufficient legal ground to entitle the defendant to a postponement of the trial. It does not appear that he had so much as asked a subpoena for the witness. If he had done this, after the service upon him of the copy of the indictment, for aught that appears, the attendance of the witness might have been procured. But if the witness had been present, his testimony would have been of no avail to the defendant. It was proposed to prove by him mere threats of the deceased; which, if proved, would have been no extenuation of the crime. Moreover, the affiant did not state that he knew of no other witness by whom he could prove the same facts. It is scarcely necessary to say, he was not entitled to demand a postponement of the trial, as a matter of legal right, in order to afford him an opportunity of seeing if he could not find other evidence, or persons who would join him in an affidavit to obtain a change of venue. There is no error in the ruling of the Court refusing a continuance.
The sufficiency of the indictment, to warrant a conviction of murder in the first degree, under the Statute, is not an open question. In Gehrke v. The State (13 Tex. R.) this Court decided that an indictment for murder, in the common law form, charging the offence to have been committed feloniously, wilfully and of malice aforethought, was sufficient to sustain a conviction of murder in the first degree. The question was again earnestly pressed upon the consideration of the Court in the case of White v. The State. (16 Tex. R. 206.) But the first opinion was adhered to. We might content ourselves with a reference to these decisions, as having put the question at rest in this Court. But as the objection is again urged, it will not be out of place to refer to a few decisions in our sister States, which show, that what is the settled law of this [694]*694Court, is also the well settled doctrine of other Courts, upon Statutes similar to our own, and that it is rightly settled upon principle.
The Statute' of Tennessee distinguishes the degrees of murder, and defines murder in the first degree, in terms nearly1-' identical with those employed in the Statute of this State, as* any “ wilful, deliberate, malicious and premeditated killing.” (Laws of Tenn. p. 316, Act of 1829, Sec. 3, Whart. Am. Cr. L. 418.) And in Mitchell v. The State, (5 Yerger,) the- Supreme Court of that State held an indictment for murder in tlie common law form, sufficient to sustain a' conviction of murder in the first degree, under the Statute. The question wan again raised in the later case of Hines v. The State; (8 Humph. R. 597,) and it was then said by Judge Green, delivering the opinion of the Court, that the construction which was given to the Statute in Mitchell’s case in 5 Yerger, had met with-such general approval by the profession, that the decision had never been questioned in that Court, until in the Case then before them ; and that they regard it as the settled law of the Court, not now open for debate.
The Statute Law of Pennsylvania contains a like definition of the degrees of murder, (Whart. Am. Cr. L. 355,) and it is there held, that it is not necessary that the indictment should so describe the offence as to show whether it be murder of the first or second degree ; and that an indictment for murder in the common law form is sufficient to support a conviction of murder, of either degree. The reasoning of Chief Justice Tilghman, in White v. The Commonwealth, (6 Binney, 179,) is equally applicable to our Statute, and shows, very satisfactorily, that there is nothing in the Statute which requires any change iff the form of the indictment, but that it is plain none was contemplated. The general principle is recognized, that where a Statute creates an offence the indictment must pursue, the statutory definition in charging the offence, and must charge it to have been done against the form of the Statute.' But [695]*695where the Statute only inflicts a penalty upon that which was an offence before, it need not be so laid, because in truth the offence docs not consist in a violation of the Statute. The Act does not create the crime of murder; nor, so far as concerns murder in the first degree, does it alter the punishment, which was always death. All that it does is to defino the different degrees of the crime, and regulate the punishment accordingly. It is plainly taken for granted by the Act itself, that it would not always appear on tho face of the indictment, of what degree the murder was, because the jury are to ascertain the degree by their verdict. But if indictments were to be so drawn as to show that the murder was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in the manner and form as he stands indicted. (Id. 182, 183.)
The revised Statutes of New York contained a definition or description of the crime of murder, under three classes of cases ; the first being “ when perpetrated from a premeditated design to effect the death of the person killed, or of any human being.” And in The People v. Enoch, the Supreme Court held an indictment charging the offence in the common law form, instead of charging it to have been perpetrated from a “ premeditated design to effect the death of the person killed,” suEcient, The Court said, “We may concede that this indict- “ ment must be sustained, if at all, by charging the offence de- “ fined in the first subdivision, (above quoted) because if proof “ of express malice was not admissible under it, for that pur- “ pose, proof of implied malice would not be. We may also “ concede the general principle applicable to indictments “ founded upon Statutes, that it is necessary to set forth all the “ facts and circumstances which constitute the offence as de- “ fined in the act, so as to bring the offender clearly within the “ statutable offence.” The same principle applies where an offence at Common Law has been raised by Statute, by increasing the punishment; as where the benefit of clergy has been taken away, or a misdemeanor has been raised to a felony. [696]*696But the application of this principle to the case is not admitted ; for the Statute has not altered the Common Law. The offence of murder, as defined in the Statute, was such before the Statute. There is no new offence created by the Statute, nor a new punishment annexed to an old offence. The case, therefore, does not fall within the rule, nor the reason of the rule, supposed to be violated by the form of the indictment. The Court conclude, “ The rule that the indictment should bring “ the offence within the words of the Statute declaring it, is ap- “ plicable only, in strict terms, to cases where the offence is cre- “ ated by Statute, or where the punishment has been increased, “ and the pleader seeks to bring the prisoner within the enhanced “ punishment. It is a clear proposition, that an approved form “ of indictment at Common Law, is good for the same offence, “ though declared by legislative enactment.” The case was taken by writ of error to the Court of Errors, and the judgment of the Supreme Court affirmed by the unanimous opinion of the Court. (13 Wend. R. 159, 178.) Other authorities might be cited. But these will suffice to place it beyond question, that the decision of this Court in Gehrke’s case, and White’s, settled the law rightly upon principle and authority.
There is and can be no question of the sufficiency of the evidence to warrant the finding of the jury ; nor is there any question of the correctness of the charge of the Court. There is manifestly no error in the judgment.
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Wheeler, J.
The application for a continuance manifestly showed no sufficient legal ground to entitle the defendant to a postponement of the trial. It does not appear that he had so much as asked a subpoena for the witness. If he had done this, after the service upon him of the copy of the indictment, for aught that appears, the attendance of the witness might have been procured. But if the witness had been present, his testimony would have been of no avail to the defendant. It was proposed to prove by him mere threats of the deceased; which, if proved, would have been no extenuation of the crime. Moreover, the affiant did not state that he knew of no other witness by whom he could prove the same facts. It is scarcely necessary to say, he was not entitled to demand a postponement of the trial, as a matter of legal right, in order to afford him an opportunity of seeing if he could not find other evidence, or persons who would join him in an affidavit to obtain a change of venue. There is no error in the ruling of the Court refusing a continuance.
The sufficiency of the indictment, to warrant a conviction of murder in the first degree, under the Statute, is not an open question. In Gehrke v. The State (13 Tex. R.) this Court decided that an indictment for murder, in the common law form, charging the offence to have been committed feloniously, wilfully and of malice aforethought, was sufficient to sustain a conviction of murder in the first degree. The question was again earnestly pressed upon the consideration of the Court in the case of White v. The State. (16 Tex. R. 206.) But the first opinion was adhered to. We might content ourselves with a reference to these decisions, as having put the question at rest in this Court. But as the objection is again urged, it will not be out of place to refer to a few decisions in our sister States, which show, that what is the settled law of this [694]*694Court, is also the well settled doctrine of other Courts, upon Statutes similar to our own, and that it is rightly settled upon principle.
The Statute' of Tennessee distinguishes the degrees of murder, and defines murder in the first degree, in terms nearly1-' identical with those employed in the Statute of this State, as* any “ wilful, deliberate, malicious and premeditated killing.” (Laws of Tenn. p. 316, Act of 1829, Sec. 3, Whart. Am. Cr. L. 418.) And in Mitchell v. The State, (5 Yerger,) the- Supreme Court of that State held an indictment for murder in tlie common law form, sufficient to sustain a' conviction of murder in the first degree, under the Statute. The question wan again raised in the later case of Hines v. The State; (8 Humph. R. 597,) and it was then said by Judge Green, delivering the opinion of the Court, that the construction which was given to the Statute in Mitchell’s case in 5 Yerger, had met with-such general approval by the profession, that the decision had never been questioned in that Court, until in the Case then before them ; and that they regard it as the settled law of the Court, not now open for debate.
The Statute Law of Pennsylvania contains a like definition of the degrees of murder, (Whart. Am. Cr. L. 355,) and it is there held, that it is not necessary that the indictment should so describe the offence as to show whether it be murder of the first or second degree ; and that an indictment for murder in the common law form is sufficient to support a conviction of murder, of either degree. The reasoning of Chief Justice Tilghman, in White v. The Commonwealth, (6 Binney, 179,) is equally applicable to our Statute, and shows, very satisfactorily, that there is nothing in the Statute which requires any change iff the form of the indictment, but that it is plain none was contemplated. The general principle is recognized, that where a Statute creates an offence the indictment must pursue, the statutory definition in charging the offence, and must charge it to have been done against the form of the Statute.' But [695]*695where the Statute only inflicts a penalty upon that which was an offence before, it need not be so laid, because in truth the offence docs not consist in a violation of the Statute. The Act does not create the crime of murder; nor, so far as concerns murder in the first degree, does it alter the punishment, which was always death. All that it does is to defino the different degrees of the crime, and regulate the punishment accordingly. It is plainly taken for granted by the Act itself, that it would not always appear on tho face of the indictment, of what degree the murder was, because the jury are to ascertain the degree by their verdict. But if indictments were to be so drawn as to show that the murder was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in the manner and form as he stands indicted. (Id. 182, 183.)
The revised Statutes of New York contained a definition or description of the crime of murder, under three classes of cases ; the first being “ when perpetrated from a premeditated design to effect the death of the person killed, or of any human being.” And in The People v. Enoch, the Supreme Court held an indictment charging the offence in the common law form, instead of charging it to have been perpetrated from a “ premeditated design to effect the death of the person killed,” suEcient, The Court said, “We may concede that this indict- “ ment must be sustained, if at all, by charging the offence de- “ fined in the first subdivision, (above quoted) because if proof “ of express malice was not admissible under it, for that pur- “ pose, proof of implied malice would not be. We may also “ concede the general principle applicable to indictments “ founded upon Statutes, that it is necessary to set forth all the “ facts and circumstances which constitute the offence as de- “ fined in the act, so as to bring the offender clearly within the “ statutable offence.” The same principle applies where an offence at Common Law has been raised by Statute, by increasing the punishment; as where the benefit of clergy has been taken away, or a misdemeanor has been raised to a felony. [696]*696But the application of this principle to the case is not admitted ; for the Statute has not altered the Common Law. The offence of murder, as defined in the Statute, was such before the Statute. There is no new offence created by the Statute, nor a new punishment annexed to an old offence. The case, therefore, does not fall within the rule, nor the reason of the rule, supposed to be violated by the form of the indictment. The Court conclude, “ The rule that the indictment should bring “ the offence within the words of the Statute declaring it, is ap- “ plicable only, in strict terms, to cases where the offence is cre- “ ated by Statute, or where the punishment has been increased, “ and the pleader seeks to bring the prisoner within the enhanced “ punishment. It is a clear proposition, that an approved form “ of indictment at Common Law, is good for the same offence, “ though declared by legislative enactment.” The case was taken by writ of error to the Court of Errors, and the judgment of the Supreme Court affirmed by the unanimous opinion of the Court. (13 Wend. R. 159, 178.) Other authorities might be cited. But these will suffice to place it beyond question, that the decision of this Court in Gehrke’s case, and White’s, settled the law rightly upon principle and authority.
There is and can be no question of the sufficiency of the evidence to warrant the finding of the jury ; nor is there any question of the correctness of the charge of the Court. There is manifestly no error in the judgment.
But it is now insisted that this Court cannot affirm the judgment, by reason of the repeal of the law defining the degrees of murder, and the abolition of the Common Law, effected by the Penal Code, (Art. 609, 612, 612 a) which went into force on the first of the present month, since this appeal was pending. The general principle is admitted, that if the law which created the offence is repealed, after the repealing act takes effect, no further proceeding can be taken under the repealed law to enforce the punishment. The general principle which has been invoked, qualified by the condition that the repealing [697]*697Statute substitutes no other penalty, and does not otherwise provide, is enacted in the Code. (Art. 15.) The principle is held to apply as well to the proceeding upon appeal, in the appellate Court, as to the Court having original cognizance of the offence ; and as well where the repeal took effect after the removal of cause to the appellate Court, as before. (United States v. The Schooner Peggy, 1 Cranch, 37, 40.) But, admitting the general principle in all its force, its application to the present case is expressly provided against and prevented by the repealing Act. The 14th article of the Code, to which we are referred, at the same time that it declares, that when the penalty for an offence prescribed by one law, is altered by a subsequent law, the penalty of the latter shall not be inflicted for a breach of the former ; also declares that “ in every such “ case the offender shall be tried under the law in force when “ the offence was committed, and if convicted, punished under “ that law ; except that when by the provision of the second “ law, the punishment of the offence is ameliorated, the defend“ant shall be punished under such last enactment, unless he “ elect to receive the penalty prescribed by the law in force “when the offence was committed.” Again,Article 18 declares “ that no offence committed prior to the taking effect of this “ Code shall be affected by the repeal therein of existing laws ; “ but punishment shall take place as if the laws repealed had re- “ mained in force ; except that when the punishment shall have “ been mitigated by the Code, its provisions shall apply to and “ control any judgment to be pronounced after its taking effect, “ for any offence theretofore committed; unless the defendant “ elect the former punishment.” The only question, then, for the Court to inquire of, is, whether the punishment for the offence of murder has been ameliorated, or mitigated by the provisions of the Code. And it is clear that it has not. The punishment is, as heretofore, by death, or confinement in the penitentiary, “ according to the degree of atrocity, or the circumstances of extenuation in each particular case.” It may be [698]*698death ; or solitary confinement in the penitentiary for life ; or confinement in the penitentiary to labor, for a term of years not less than three, nor more than fifteen. (Penal Code, Art. 612 a.) It could not be more or less under the former law. It-cannot, therefore, be said that the punishment has been ameliorated by the Code. The only alteration in the punishment, effected by the Code, is, that it prescribes as an intermediate punishment between death and confinement in the penitentiary for the longest period under the former law-—i. e. fifteen years —(Hart. Dig. Art. 2517,)—solitary confinement for life. But that is not substituted in the place of either death or confinement in the penitentiary for a term of years. It is provided to give the jury more ample scope to apportion the punishment according to the nature and heinousnoss of the offence ; by a just estimate of which it is made their duty to regulate the punishment from that of death to confinement in the penitentiary to labor, for a term of not less than three years. (Penal Code, Art. 609, 612.) Whether the punishment shall be death or the milder punishment, is still made to depend on the “ degree of atrocity, or the circumstances of extenuation in each particular casepreserving the same extremes as the former law. There is, therefore, no abatement or mitigation of the punishment. The object of the former law, in defining the degree of murder, was the same as the present; that is, as the Code declares, to “ regulate the punishment according to a just estimate of the heinousness of the offence.” By that law the jury found the degree by their verdict, and the law annexed the penalty ; by the present law, the jury are not to find the degree expressly, but only as their verdict shall manifest their estimaté of the heinousness of the offence by the punishment imposed. What the law required the Court to pronounce upon the finding of the jury, the jury are now to declare by their verdict. But in either case, the jury must decide upon the degree of guilt, the punishment to be regulated according-to their estimate of it. They formerly found the degree ; they [699]*699are now to find the punishment; and it is but a difieren t mode of arriving at the same result. The Code therefore can in no sense be said to ameliorate or mitigate the punishment. That implies that the penalty is reduced, or in fact, taken away, a diminution of the punishment, which the provisions of the Code do not propose or effect.
Finally, the Code of Criminal Procedure (Tit. 5, Sec. 2) declares that “ no action, plea, prosecution, or proceeding in any “ criminal case now pending, or which may be pending when “ this Act takes effect, shall be effected by the repeal of the laws “ under which it originated, but the same shall proceed in all “ respects as if no such repeal had taken place ; except that all “ proceedings had after the time this Act takes effect shall be “ conducted according to its provisions.”
There is nothing in the provisions of the Code to prevent the Court from proceeding to judgment in cases similarly situated to the present, as though it had not been passed ; and it manifestly was not the intention or within the contemplation of the Legislature, that anything therein contained should have that effect or relieve the Court from the duty of affirming a judgment of conviction, which had been rightly rendered according to law. We are of opinion therefore that the judgment be affirmed.
Judgment affirmed.