File contributed by Lisa Lach and proofed/formated by Dena Stripling

APPEAL from the District Court of Fayette. Tried below before the Hon. L. W. Moore.
*1 By indictment, filed in the District court of Fayette County, on November 17, 1879,
 the appellant was charged with the murder of William Finkelstien, on the twenty-first
 day of October, 1879, by striking him on the head with a shovel. The conviction was 
for murder in the first degree, and the punishment awarded by the jury was confinement
 in the penitentiary for the term of his natural life. The trial was had in November,
 1882.
Nat Holman was the first witness for the State. He testified, in substance, that he 
knew the defendant, but was not acquainted with William Finkelstien, the deceased. 
The first and only time he ever saw the deceased was at his, the witness's, gin, in
 Fayette county, Texas, on the evening of _______, 1879. Deceased was then alive, 
but suffering from a wound on the right side of his head, just above and behind the
 ear. The wound was about two and a half or three inches long and about a half inch
 deep. The skull was crushed in, but the skin was not broken. The indentation was 
large enough to hold an egg. When the witness reached his gin that day, he found 
the deceased lying on some bagging under the cotton shed, wounded as described, 
with the blood flowing from his nose, mouth and ears. He was then alive, but 
speechless. He muttered unintelligibly several times before his death, which 
occurred some four hours afterward. Several persons were with the deceased when
 the withess reached him, and were pouring water over his head, among whom 
Cellis Holman and Felix Bridge.
Cellis Holman showed the witness the shovel with which the wound was said to 
have been inflicted. The witness knew the shovel well. It had been in use at 
the gin for several years, being used for shoveling cotton seed. It was a 
large iron shovel, with a handle about four feet long, and weighed some eight 
or ten pounds. At the place where the handle fitted in, commonly called the eye,
 there was a double thickness of the iron, making the entire thickness of the 
iron at that place about a quarter of an inch. Witness bought this shovel 
because of its peculiar make, and had never seen another like it. If the wound 
on the deceased was actually inflicted by this shovel, he must have been 
stricken with the eye of it, as no other part of the shovel would make such 
character of wound. Witness did not go up into the gin that day, but went up
 there the next day??
Proceeding with his testimony, the witness said: "When I went up into the gin
 next morning, I found, in the main room, a pool of blood, about the middle of
 the walk running from the front door back to the gin stand. This pool of blood
 was near where the shaft comes up through the floor. It was at a point about 
opposite the middle of the second left hand cotton seed stall, as you go into 
said room from the front door. There were three cotton seed stalls on the right 
hand side as you went in said room from the front door, and each stall was 
separated from the other by a plank partition. There were also three stalls on 
the left hand side, but the one nearest to the gin was a sort of half stall. 
These stalls were usually filled with cotton seed. A man standing at the gin 
stand could not see to the floor where the blood was, but could have seen, 
around the corner of the second stall, any person standing erect. I have owned 
the gin for several years, and am perfectly familiar with its interior." 
Witness saw the defendant just before the killing, but saw no more of him until
 the last term of the court.
*2 On cross-examination, the witness stated that he was not present, and knew
 but little about the killing. He reached the gin about two o'clock p. m. He 
had no recollection of having previously seen the deceased. He was not at the
 witness's house on that morning. Morgan Braker, Cellis Holman, Felix Bridge,
 and four or five transient white men were at the gin when the witness arrived
 there. One of these white men was named Russell, and another Roberts. Witness
 was present at the inquest held by justice Smith, and wrote down the testimony,
 but did not remember who constituted the jury. Witness was taking no particular
 interest in the prosecution, but had said that if the defendant got his just dues
 he would be hung. Cellis Holman was feeding the gin on the day of the killing. 
The defendant was at the time, and had been for three months, in the employ of the 
witness. Witness knew of no difficulty between the defendant and Cellis Holman. 
With reference to this witness's testimony, the transcript recites as follows:
"In the absence of defendant's counsel, the district attorney asked where he was,
 when witness replied in a low voice: 'I guess he has got enough of it.' The court
 did not hear the remark. The attorney for the defense had absented himself without
 the knowledge of the district attorney and whilst the district attorney was 
examining the witness."
Cellis Holman was the second witness for the State. He testified that he knew both
 the defendant and the deceased. The latter was killed at Nat Holman's gin in 
Fayette county, in the month of October, but witness could not recall the year.
 Witness was present when the deceased died. He was also present and testified 
before the coroner's inquest. Witness was feeding the gin on the day of the 
homicide. The duty of the defendant in the gin was to shovel up cotton seed in 
the small room containing the gin stand, and take them to the stalls in the large
 room. For this purpose he used a large iron shovel, which is the weapon with 
which he killed the deceased. He had often used the shovel and was familiar with 
it.
While witness was at his work at the gin stand on that day, the defendant brought
 him a woman's sack, saying that he had just bought it from a peddler down stairs,
 and asked if witness thought it large enough for his, defendant's wife. Witness
 told him to try it on, and that if it would fit him it would fit his wife. About
 this time the deceased came up stairs and asked witness if he did not wish to 
purchase something. Witness replied that he did not, that he had no money. 
Deceased replied: "Yes, you have plenty of money." Witness then told him that 
possibly he would go down stairs presently and look at his goods. Deceased then
 turned to go down stairs, when defendant demanded of him to take the sack back,
 as it would not fit his wife. The deceased looked back and said: "I don't do 
business that way; that is the way children do business," and walked on. Defendant
 thereupon reached back and secured the iron shovel. He caught it by the handle, 
threw it up in a striking position, and followed the deceased. When defendant got 
just about the corner of the partition dividing the first cotton stall nearest the
 gin stand on the right hand side going from the gin stand to the front door, the 
witness saw him strike forward with the shovel. Witness could not see Finkelstien,
 the deceased, at that time, as he had passed the said partition, but could see the
 defendant plainly. He saw the shovel as it went down, but could not see what it 
struck, as, when it went down, the shovel part passed down on the other side of the
 partition from the witness. The gin was running at the time, and making so much 
noise that the witness could not hear the sound of the blow, or whether any thing
 was said when it was inflicted.
*3 After striking the blow the defendant came back to the gin stand, threw down
 the shovel, and said: "D____n him, I got him!" Witness stopped the gin, ran around 
to the place where he saw the defendant strike the blow, and found the deceased 
lying forward on his face, in the walk, with his head at a point about opposite 
the middle of the second stall. He had a wound on the right side of his head, 
just back of the ear, and was bleeding profusely. The defendant came up, and 
witness asked him: "Sam, what did you kill the man for?" Defendant looked at the 
man, laughed, said nothing, sprang out of the window and ran towards the river 
bottom. Witness ran to the door and called a man who came with the deceased to the 
gin, told him Finkelstien was killed, and he and witness, after washing deceased's 
face, carried him down stairs and laid him on some cotton bagging under the cotton 
shed. Witness saw the defendant plainly when he struck the blow. Witness, defendan
t and deceased were the only parties in the gin at the time of the killing.
Witness saw no more of the defendant until at the previous term of this court. He,
 witness, showed Nat Holman the shovel with which the blow was struck on the same
 day. It was a heavy shovel with a handle three or four feet long. The shovel was 
usually used with both hands. Defendant held it in his right hand when he struck 
the blow. Defendant did not offer to assist the witness, either to wash deceased's 
face or to take him down stairs. He merely looked at deceased after he had felled 
him, laughed and ran off. Witness thought he could recognize the man who was with 
the deceased on that day, and pointed out a man present in court as the individual.
 He was not certain the individual indicated was the man, but believed him to be.
Cross-examined, the witness stated that the deceased had a whip in his hand when 
he came into the gin, and still had it when he started out. It was rather a large 
sized whip, but witness did not take close enough notice of it to be able to
 describe it. It was lying near and at the side of deceased when witness got to
 him after he fell. Witness did not on a former trial of this case say that after
 the deceased fell he still held the whip in his hand. Deceased made no effort or
 demonstration to strike the defendant with the whip. If he had, witness would have 
seen it. Witness at no time told Tom Braker and Felix Bridge that he did not see
 the killing. Witness said nothing before the inquest about the defendant laughing 
after the deceased fell, because no question was propounded to him on that point. 
He merely stated that defendant looked at the man and ran off. Previous to this 
killing witness and defendant had had difficulties--one or two little fights--but
 had made friends, and witness had no grudge against him at the time.
The witness denied that he had at any time after the killing told Handy Holman that
 he now "had Sam just where he wanted him;" that he "was the only witness against 
him and could swear what he pleased." He had never threatened to "get even" with 
the defendant. Witness did not examine the sack purchased by the defendant. When 
defendant asked him if the sack would fit his wife, witness told him that it would 
if it would fit him. There were three stalls on each side of the big room. Witness 
was standing at the gin stand, feeding it when the blow was struck, and was facing 
the big room. To feed a gin requires care, but in feeding one the witness could look 
about and around without cutting his fingers in the gin. Witness denied that he had 
ever said to defendant's counsel that, when he asked defendant why he had killed the
 peddler, the defendant asked: "What! have I killed him?"
*4 Re-examined by the State, the witness testified that he was standing some nine or
 ten feet from the defendant when he struck the blow, and was looking directly at him. 
The deceased could not have struck the defendant without the witness seeing him. 
Witness did not know the exact distances in the gin, and when he spoke of distances
 did so upon opinion. When witness went to the deceased after he had fallen, the 
whip lay a little to his right on the cotton seed. Deceased had the whip in his hand 
when he started off. The first stall on the right hand side going from the gin stand
 to the front door is partitioned from the second stall by a plank partition about 
seven feet high, but on the side nearest the gin stand there was no partition between 
the first stall and the way leading from said gin stand. The cotton seed in said stall 
was kept from falling in by an old press door, which was about four feet long, and three
 and a quarter feet wide. Witness could easily see over said door, and there was nothing
 to obstruct his view beyond, between the gin stand and the dividing partitions between 
the first and second stalls.
M. Lauderstien was the next witness for the State. He testified that he was the man 
pointed out by the last witness as the companion of the deceased at the time of the 
killing. The witness Cellis Holman, was mistaken; this witness was not the companion 
of deceased on that occasion. The deceased's companion at that time was one Caimer, 
now in Mississippi or Kentucky. The witness, however, had traveled with deceased 
before his death for five years, peddling, and they were together on Holman's place
 about a week before the killing. The witness Cellis Holman had often seen this 
witness and deceased together. Here the State closed.
T. W. Smith was the first witness for the defense. He testified that he was a justice
 of the peace at the time of the homicide, and held the inquest on the deceased's body.
 The papers containing the evidence were handed by witness to B. D. Shropshire, county
 attorney, and he failed to turn them over to the proper officers; for which failure 
the witness was indicted. Witness had not since seen the said papers, and had no idea 
what had become of them, nor could he now remember their contents. Witness could not 
remember the parties who constituted the coroner's jury. At this point the district 
attorney stated that he would admit the loss of the papers, and consent that parol 
evidence be received of their contents.
C. Michaelis was the next witness for the defense. He testified that he was a carpenter
 by trade, and that he could draw a correct diagram of a given place. He drew the diagram
 in evidence, which is a diagram of the Nat Holman gin, in Fayette county. It was 
prepared on the day preceding this trial by the witness, who, for the purpose of 
drawing it, visited the said gin in company with the defendant's counsel and two 
colored men. The spots in the center of the building, as indicated on the diagram, 
represented blood spots, though witness could not of his own knowledge say that they 
were blood spots. The witness, however, saw the spots. They were on a small square 
movable platform in that room, which platform covered the hole in the floor through
 which the shaft passed when the gin was in motion. The large room is thirty-four 
feet long. The distance from the gin stand to the blood spots is twenty-eight feet. 
There are stalls for cotton on each side of the large room, but there were no 
partitions in them when witness was at the gin. It would depend upon the height 
of the partitions whether a man could see from the gin stand to the middle of the
 second stall.
*5 Cross-examined, the witness stated that, if the partition between the first 
stall on the right as you go from the gin and the way running between the stalls 
was a door four feet by three and a half feet, a man at the gin stand could easily
 see to the corner of the partition between the first and second stalls.
I. B. Holloway, district clerk, testified, for the defense, that he was district 
clerk when Finkelstien was killed. He knew nothing about the papers containing the
 proceedings of the coroner's inquest in that case. He had never seen such papers.
Handy Holman was the next witness for the State. He testified that, when Finkelstien
 was killed, he was in the field on the Nat Holman place. Witness had a conversation
 with Cellis Holman a few days after the killing occurred, in which he asked Cellis 
if he saw the killing, to which Cellis answered that he only saw the defendant raise
 the shovel and make the blow; that he did not see the blow when it fell. Cellis 
Holman and the defendant had a difficulty a short time before the killing.
Tom Braker testified, for the defense, that he lived on Nat Holman's place, and was
 familiar with the gin house. Witness was at the gin house a few days before this 
trial, along with the attorney for the defense and other gentlemen, and pointed the
 blood spots out to them. Witness knew them to be blood spots, because he saw them 
shortly after the killing. There were stalls on each side of the big room, six or 
seven feet high. A man standing at the gin stand could not see the point where the 
blood spots were. He could, however, have seen a man throw up a shovel with a five 
foot handle. Witness could not say that a man standing a few feet back from the 
blood spots could not be seen from the gin stand. The partition between the end of
 the first stall, near the gin stand, and the walk leading by it was not, at the 
time of the killing, constructed of an old three foot door, but was a partition six
 or seven feet high. This the witness knew, because his cotton was in that stall. 
Witness saw the woman's sack, which was the cause of this difficulty. It was old, 
moth eaten and full of holes. "If a man was standing behind the blood spots, and 
another was standing a few feet behind him, and nearer the gin stand, a person at 
the gin stand could see the latter, but not the former."
Felix Bridge testified, for the defense, that he was picking cotton in the 
neighborhood at the time of the killing. Soon after the homicide occurred, Cellis 
Holman sent for the witness and explained to the witness how the homicide occurred.
 He said that the deceased was a peddler, and, at the gin, sold the defendant a 
sack, with which the defendant became dissatisfied; that defendant asked him if 
he, Cellis, thought it would suit his, defendant's wife; that he, Cellis, replied 
to the defendant: "It may suit you, but it won't suit your wife;" that thereupon 
defendant offered the sack back to the peddler, and demanded return of the purchase
 money; that the pedler replied: "I do not do business that way," and turned and 
walked off, when the defendant picked up the cotton shovel and followed; but that 
he, Cellis, did not see the defendant when he struck the blow.
*6 On cross-examination, the witness stated that he was the defendant's father-in-law.
 This conversation occurred a few days after the killing. The witness, at that time,
 was somewhat excited about the affair. No one was present at this conversation, save
 the witness, Cellis and the peddler's partner. Others came up afterward.
Monroe Richardson testified, for the defense, that he was in the neighborhood when
 the killing occurred. Cellis Holman told him about the attendant circumstances the
 day after the homicide occurred. He said, in that connection, that the defendant 
came running by him, and said: "I have hit that fellow;" that he went up to the man,
 and asked the defendant: "Sam, what did you kill this man for?" That defendant 
replied: "What! Have I killed him? Is he dead?" and then jumped out of the window,
 and ran off.
Witness worked for Mr. Nat Holman, and was familiar with the gin. A man could not 
occupy the gin stand and see to the middle of the second stall; at least, the 
witness could not. There were stalls on each side of the big room. Witness did not
 know the height of the partitions.
Cross-examined, the witness stated that he did not know whether or not the partition
 nearest the gin stand was formed of a small door. No one was with witness when he 
had the conversation with Cellis, deposed to. Witness had not thought of that 
conversation since, until called upon to testify in this case. Nothing has occurred
 to fix this conversation in the witness's mind. Witness had had no other conversation
 with witness Cellis. Here the defendant rested.
In rebuttal, the State produced several witnesses who testified that the reputation of
 the State's witness Cellis Holman was above reproach or suspicion.
Nat Holman, recalled for the State, testified that an old press door, four feet by 
three and a half, was used to enclose the side of the first stall nearest the gin 
stand, which side was not planked up. It was thus used to prevent cotton seed from 
falling out on the walk. When used for this purpose, it was set up on its side. 
When not in use, it generally lay flat on the floor. Witness did not know its 
position on the day of the homicide.
The general and requested charges are here incorporated in full, in accordance
 with the direction of the court. The general charge reads as follows:
"The defendant is on trial, charged with the murder of Wm. Finkelstien, and 
pleads not guilty??
Every person of sound memory and discretion, who shall unlawfully kill any 
reasonable creature in being, within this State, with malice aforethought, 
either express or implied, shall be deemed guilty of murder. Murder is distinguishable 
from every other species of homicide by the absence of the circumstances which reduce 
the offense to negligent homicide or manslaughter, or which excuse or justify the 
offense.
All murder committed with express malice is murder in the first degree, and all murder
 committed with implied malice is murder in the second degree, and the distinction 
between express and implied malice determines whether murder is of the first or 
second degree.
*7 Malice means that state of a wicked and depraved mind fatally bent upon mischief.

The important inquiry in determining the existence of express malice is, do the 
external circumstances, the acts and the conduct of the accused at the time, before 
and subsequent to the killing, if such there be, indicate a cool and deliberate mind
 and formed design to kill? If so, there is express malice.
There is no certain or definite space of time necessary to intervene between the 
formed design to kill and the fatal blow. A single moment of time may be sufficient.
 All that is required is that the mind be cool and deliberate in forming its purpose,
 and that the design to kill is formed.
If you believe from the evidence that the defendant did kill Wm. Finkelstien with 
express malice as before defined, you will convict him of murder in the first degree.

Implied malice is what the law implies from every voluntary killing of a human being,
 when the circumstances, upon one hand, show no express malice, nor upon the other any
 excuse justification or mitigation, nor reduce the offense to manslaughter. Every 
voluntary killing of a human being without deliberation, from some rash, inconsiderate
 impulse, would be upon implied malice, and would be murder in the second degree.
If you believe the defendant did kill William Finkelstien without express malice, 
yet if you believe such killing was committed under such circumstances as that malice 
is implied, as before defined, you will convict of murder in the second degree.
If you have any reasonable doubt of the guilt of the accused, you will acquit, and 
so you will acquit of any grade of the offense of which you have any reasonable doubt.
 If you find the defendant guilty of murder in the first degree, you will assess his
 punishment at death, or by confinement in the penitentiary for life.
If you find him guilty of murder in the second degree, you will assess his punishment
by confinement in the penitentiary not less than five years; in either case stating 
the degree of murder.
The jury are the judges of the credibility of the witnesses, and weight of the
 testimony.
L. W. MOORE, Judge."
The requested and refused charges read as follows:
"First. The jury are the sole judges of the weight to be given to the testimony of
 each witness, and the credibility of each witness. They can discard a portion of 
the testimony of a witness or all of his testimony. A witness may be impeached by his 
own contradictory statements, or by his character for truth and veracity in the 
neighborhood in which he lives being successfully attacked. In either case the jury
 has the privilege of discarding his evidence.
Second. Although the law implies malice in case of unlawful killing by means 
calculated to produce death, still in such case the burden of proof does not shift
 from the State to the defendant, but the burden remains on the State to prove the
 degree of the offense aliunde the actual killing.
*8 Third. Every person is presumed to understand the probable result of his acts, and 
when an unlawful act is clearly shown to have been committed, it is for the defendant
 to show facts which mitigate, justify or excuse, so that a reasonable doubt at least
 may arise upon the entire evidence as to his guilt. If the jury believe from the 
evidence that the deceased, William Finkelstien, said anything or committed any act 
at the time of the killing, which would mitigate, justify or excuse the killing, they 
should take into consideration such saying or act, and find their verdict accordingly;
 that is, either find the defendant guilty of some lower grade of offense than murder
 in the first degree or acquit the defendant.
Fourth. (Murder in the first degree has been defined to you.) A murder committed under
 the influence of sudden rage, resentment, passion or anger at some insult offered or 
wrong done to the defendant by the deceased, at the time of the killing, cannot be murder 
in the first degree unless coupled with something said or act done by the defendant at 
the time, before or after the killing, tending to show malice as defined by the 
statute.
Fifth. In impeaching a witness by proving his bad character for truth and veracity,
 such character must be notorious in his neighborhood, and while the proof may be 
made by one witness, still, in weighing the evidence, the production of one witness
 would not ordinarily be satisfactory. So, in proving that his character is good for
 the same, it should be notoriously good in the neighborhood, and one or two witnesses
 to that fact will not ordinarily suffice."
"These charges are refused because, so far as they are correct legal propositions, and
 so far as the facts require the application, they are embraced in the charge of the 
court.
L. W. MOORE, Judge."
"If the jury believe from the evidence that there has been no malice proven, either 
express or implied, they cannot convict the defendant of murder in the first degree.

Where the fact of the killing has been clearly shown, and that it was done under such
 circumstances as in law will mitigate, excuse or justify the act, the law in such 
cases implies malice, and makes the killing murder, but it would be murder of the 
second degree."
"Refused because embraced in the charge of the court.
L. W. MOORE, Judge."
The motion for new trial embraced the questions involved in the opinion??



Where an absent witness is expected to prove statements made by defendant himself, 
his motion for continuance must show that they are part of the res gestae, or that 
the testimony is competent for some other reason.


An application for a continuance because an attached witness had been released,
 without defendant's authority, eight days before the case was reached for trial, 
was properly refused where it failed to show that he did not learn such fact in 
time to have secured the witness by the service of a new process.



On a trial for murder, it was not error to refuse to grant the defense time to take
 down the testimony.


Newly discovered evidence as cause for a new trial is not sufficient when its
 materiality, probable truth, and exculpatory nature are not made manifest.


An exception that "the court erred in the charge" is too vague to invoke a revision
 of the charge given by the trial court, but in felony cases it is the practice on 
appeal to revise the instructions given to the jury.


In a criminal prosecution for homicide the defense reserved exceptions on the ground
 that during the progress of the trial the judge absented himself from the bench and 
court room without notice to counsel and that during his absence the state's counsel 
proceeded with the examination of a state's witness and when the defense objected to 
the manner of interrogation there was no judge present to sustain or overrule the 
objection and illegal and damaging evidence went to the jury. But the judge's 
explanation states that his absence was very brief and of necessity and he 
supposed the counsel had taken notice of it; that counsel for the defense did 
not complain of any evidence introduced during the interval but said he had 
objected to some testimony and counsel for both sides said they were awaiting 
the judge's return and the defendant's objection to the testimony was then 
presented. Held, that the bill of exceptions was defective because it did not
 disclose what the illegal testimony was.


In a prosecution for homicide the defense reserved an exception because the trial
 court refused to admit evidence of the magistrate who held an inquest on the body
 of the decedent, in the absence of "the papers." The bill of exceptions failed to 
show what "papers" it referred to and the trial court received the evidence of the
 magistrate except with regard to the loss of the record of the inquest and the state
 admitted the loss of that record and conceded the right of the defense to prove its
 contents. Held, no error was apparent.


That a defendant's challenge for cause was improperly overruled, and he was thereby 
forced to the peremptory challenge of a disqualified juror, is not error of which he
 can complain unless he exhausted his peremptory challenges before a full jury was 
obtained.



Where one, with a sedate and deliberate mind and formed design, kills another, there 
is express malice, although the design is formed immediately before the killing.


Murder in the first degree can be perpetrated by other means than those specified in 
Pen.Code, art. 606 [Vernon's Ann.P.C. art. 1257], and the express malice which 
characterizes it may be evidenced by other external circumstances besides lying 
in wait, antecedent menaces, former grudges and concocted schemes, and even in a 
sudden difficulty homicide may be committed under circumstances of such enormity,
 cruelty or deliberate malignity as will suffice to show that it was done with 
express malice and is murder in the first degree.

Evidence held to sustain conviction of first degree murder.

In a prosecution, tried in 1882, for homicide committed in 1879, testimony of a 
witness for the state relating to the homicide in question, the date of which was 
fully proved by other witnesses, was competent, although the witness was unable
 to give the year in which the killing occurred.
A. S. Chevalier, filed an able brief for the appellant.
J. H. Burts, Assistant Attorney General, for the State.



HURT, JUDGE.
The appellant, Sam Lewis, was indicted for the murder of William Finkelstien, a
 peddler, on the twenty-first of October, 1879. He was tried and convicted of 
murder in the first degree; his punishment being assessed at confinement in the
 penitentiary for life. From this judgment and sentence he appeals and relies 
upon a number of assignments of error.
His first error is the action of the court in overruling defendant's motion to
 quash the venire upon the ground of the insufficiency of the return of the sheriff 
touching his diligence to find and summon certain veniremen. In regard to the jurors
 not summoned the return of the sheriff is as follows: "And the following named 
persons whose names appear upon said venire were not summoned for the following 
reasons, to-wit: F. Kendel, W. Carles, C. H. Burns, D. P. Croft, John Burk and W. S. 
Lane, are all out of Fayette county, and could not be found in said county although 
diligent search was made for them by the sheriff of Fayette county and his deputies;
 and H. C. Gerdes, John Frierson, A. Groos, W. Dick, August Mischer and N. M. Cockrell
 were not found in Fayette county although diligent search was made for them at their 
residences and places of business, and at any point at which they were likely to be 
found by the sheriff of said Fayette county and his deputies." Article 614, Code 
Criminal Procedure requires the diligence to be stated. This return, we think, fully 
complies with the Code, and, if true, great pains was taken to summon these jurors.
*9 By the second assignment it is insisted that the court erred in overruling defendant's
 motion for continuance.
Jack Lewis, of Colorado county, S. Smith, of Bastrop, and Handy Holman, of Fayette, 
were the witnesses desired. Lewis was attached by the sheriff of Colorado county, 
and was released by the order of John Mitchell, Esq., on the fifteenth day of November,
 1882. Defendant in his motion states that Mitchell was not an attorney in the case, 
and that he was not authorized to release this witness Lewis. This may be true. The 
question, however, is one of diligence. Lewis was discharged on the fifteenth day of
 November, and the cause was not reached or called for trial until the twenty-third 
of that month. We are not informed by defendant's motion at what time he learned that
 Lewis had been released from the attachment. It may have been the same or the next 
day, leaving ample time for another attachment to have been issued, served and the 
attendance of the witness secured.
Again, the evidence of said witness Lewis is not shown to be competent. In his motion 
defendant says "that he expects to prove by said witness that affiant told witness, 
after the murder, * * that he did not intentionally kill deceased, but deceased struck
 him over the head with a buggy whip, and he returned the blow with no intention of 
killing the deceased." That "affiant told witness," etc. When and where did he tell 
the witness? To be admissible, the statement of affiant (the defendant) must have 
been res gestae, and all of the facts and circumstances, the time and place, must 
be stated, which are necessary to show that, in fact, his statement was res gestae.

By the next witness the defendant expected to prove "that there existed in the county
 so great a prejudice against defendant that he could not obtain a fair and impartial
 trial in said county; that he is a material witness on a motion for change of venue.
 A sufficient answer to this is that there was no motion made for a change of venue. 
If defendant had filed his motion for that purpose, and desired witnesses to establish
 his right to a change, the court no doubt would have caused proper process to be 
issued, and would have given defendant time to assert his right in regard to this
 motion. But, as there was no effort made to assert his right to a change of venue,
 we presume the defendant abandoned this purpose.
The other witness is Henry Smith. By this witness defendant expects to prove "that
 Holman (a very important witness for the State) before the jury of inquest did not
 swear that affiant laughed when he saw that deceased was dying." It is not stated 
in the motion for continuance that Holman said anything upon this subject at all. 
His attention was not called to this matter, nor does it appear (from the motion) 
that the negative of what the witness swore on the trial was even so much as hinted
 at in his testimony before the inquest.
*10 That a witness fails to state everything that was done and said by the parties 
at the time of the occurrence of the facts to which he swears is not a contradiction.
 To be such, he must make a statement in regard to the fact. If he omits a fact, 
his attention should be drawn to it, or, if he is asked if what he has stated was
 all that was said by the party or parties, and he answers in the affirmative, and
 upon the trial he embraces other facts, in his evidence, than those related by 
him before the inquest, the defendant would have the right to show this. This, 
however, is not the state of the question in the case in hand. As presented to 
us by the record, Holman simply testified to some facts which were omitted in his 
evidence before the inquest, and these not in conflict but harmonious with his 
evidence there given.
The court did not err in overruling the motion for continuance.
It is assigned as error that the court erred in holding the juror Zreemer competent.
 This juror was challenged peremptorily, and the defendant did not exhaust his challenges.
 It is now settled by this court that, to complain of the action of the court in
 erroneously holding a juror competent, the defendant must exhaust his peremptory 
challenges. We are of the opinion, however, that the juror was impartial and 
competent. The juror stated that when he heard of the killing "he said the defendant
 ought not to have killed the deceased, but that he had formed no opinion, nor then
 had any opinion about the case."
Fourth assignment is "that the court erred in permitting Nat. Holman, a witness for
 the State, but one who was not present at the killing, to give his opinion of the 
manner in which the blow was struck, and the relative position of the parties, when
 the State had failed to show witness to be an expert in such matters." Holman 
described the wound minutely, and the shovel (the weapon used), and then gave his 
opinion that, "if the wound inflicted on Finkelstien was made with the shovel, he 
must have been hit with the eye of it; no other part of the shovel could make the 
same kind of a wound as was on him." This evidence, to wit, the witness's opinion,
 was not competent. But was the defendant injured by it? We think not. The wound was 
of that character, taken in connection with the formation of the shovel, as to place
 it beyond cavil that, if inflicted with the shovel, it must have been with that 
part known as the eye. This opinion of the witness was perfectly patent, and, whether 
expressed or not, the jury would have irresistibly reached the same conclusion. If the
 State had been seeking to identify the weapon with which the blow was inflicted, by 
this evidence, we would hesitate before sanctioning such means. This, however, was not
 the case, there being an eye witness to the fact that the blow was inflicted with the
 shovel.
5. "During the progress of the trial the honorable judge absented himself from the 
court room, and remained outside without notifying counsel. The counsel for State 
continued to examine his witness in the absence of the court, and when counsel for
 the defense arose to object to his manner of interrogating the witness, no court was
 present to sustain or overrule the objection to the evidence, and during this interval
 illegal and damaging evidence to the defense went to the jury." The record informs us
 "that the presiding judge retired under a call of nature for a brief minute, supposing
 the counsel would take notice thereof. Counsel for defendant did not complain of any 
testimony introduced in his absence, but stated that he had offered objections to some
 testimony, and that counsel for both parties said they waited his return and then 
presented the objection to the testimony."
*11 In the first place, we are not informed of what the illegal and damaging testimony
 complained of by defendant consisted. This is fatal to the bill of exceptions. Again
, the momentary absence of the presiding judge during the examination of a witness, 
under the circumstances mentioned in the record, will not of itself justify this court
 in reversing the judgment. If illegal or improper evidence had been introduced by
 the State, over objection of defendant, during this absence, a motion to exclude would
 have resulted to his relief against such evidence. But we cannot hold the opinion of 
counsel that there was illegal evidence admitted; the facts must be set out that this 
court may pass upon their illegality. Notwithstanding the very high respect in which
 the counsel for defendant is held by this court, we must be permitted to say that we
 view this whole matter as frivolous.
Sixth assignment: "The court erred in admitting the evidence of Holman (a witness for
 the State) as to the murder, when the said witness knew nothing about the date of the
 killing, not even being able to give the year of the killing." The date of the killing
 was very clearly proven by other witnesses. The witness Holman referred to the same
 homicide. That he failed to remember the year is no objection to the competency of
 his evidence.
6 1/2. "The court refused to grant the defendant time to take down the testimony." In
 this there was no error.
7. The court refused to give any of the charges asked by the defendant. The proper 
charges requested were embraced in the charge of the court. The other charges refused
 were without facts, or were upon the weight of the evidence, and were properly
 refused.
7 1/2. "The court refused to admit the evidence of T. W. Smith, the justice of the
 peace who sat on the inquest held over the body of the deceased in 1879, in the
 absence of the papers." What papers? We may presume that the testimony taken before
 the jury of inquest was reduced to writing. But certainly bills of exception should
 be more specific. What facts did defendant propose to prove by this witness? We know
 not. Were they competent and beneficial to the defendant? Here again we need light.
 But the explanation of the learned judge, we think, shows, that there is nothing
 whatever in this billl. We are informed by the record that the State admitted the
 loss of the papers, and offered to permit any testimony showing their contents, and
 that the loss was known upon a former trial, and it was only as to the loss of the
 papers that the court would not hear further testimony by Smith. What necessity was
 there for any proof of the loss of these papers by Smith or any other witness, when
 their loss was an admitted fact?
8. The court gave verbal instructions to the jury, to wit: "that they should not cast
 lots in coming to a verdict." In this there was no error.
9. "The court erred in the charge." The bill of exceptions points out no error in the
 charge. However, this being a felony, the charge of the court has been thoroughly 
examined, and we find that the law applicable to the case made by the evidence was 
fully and clearly given in charge to the jury.
*12 10. "The court erred in refusing to grant a new trial in the case, on the grounds
 set forth in the motion of defendant therefor." In addition to some of the matters 
already mentioned, the motion for new trial contained two others: 1, newly discovered
 evidence; 2, that the verdict of the jury is contrary to and not supported by the
 evidence. This newly discovered evidence consists of the facts set forth in the affidavit
 of B. D. Shropshire, Esq., in regard to those lost papers, already mentioned in this 
opinion. Neither the motion for new trial nor the affidavit of Shropshire indicates 
that a material fact, beneficial to the defendant, could be established by those papers,
 if found. The motion seeks a new trial upon the ground that there is a probability
 of finding those papers. Suppose they should be found, how would defendant be 
benefitted by them? To authorize a new trial upon this ground, this must be shown in 
such clear light as to place it beyond doubt. To be explicit: 1. The newly discovered
 evidence must be made to appear material. 2. Not in conflict to such extent as to 
render its truth improbable. 3. It must be beneficial, exculpatory, in its nature.

Appellant being convicted of murder of the first degree, it is urgently insisted by
 his learned counsel that the evidence fails to support the verdict finding him guilty
 of that offense; and it is very plausibly argued by counsel that, as there was no 
proof that defendant took the life of deceased by starving, torture, etc., or by lying 
in wait, or that he had threatened to kill him, or entertained grudges against him, or
 had concocted schemes to do him bodily harm, that, therefore, there was no proof of 
express malice. In this we cannot agree with counsel for defendant.
Express malice is where one with a sedate and deliberate mind and formed design kills
 another; and this formed design is evidenced, proven, by external circumstances 
discovering that inward intention; and this formed design, inward intention, is 
discovered, made manifest, by such external circumstances as taking life by starving,
 torture, etc., or by lying in wait, or antecedent menaces, former grudges and concocted
 schemes to do bodily harm. These are illustrations of the external circumstances which
 discover the formed design, the inward intention, but they do not exhaust the whole
 field of facts and circumstances by which the formed design, the inward intention,
 may be discovered.
If it is shown by any fact or circumstances--is made manifest--that one with a sedate 
and deliberate mind and formed design, kills another, the killing would be upon express
 malice, and these external circumstances discovering the formed design may transpire 
at the time of the killing, as well as before. "For though the killing be upon a sudden
 difficulty, it may be attended with such circumstances of enormity, cruelty, deliberate
 malignity, cool calculating compassings, or even calm demeanor and absence of passion,
 as will be sufficient evidence to establish the inference that the killing was the result
 of a sedate, deliberate mind and formed design to take life or do some great bodily
 harm. Acts and admissions or other language of the prisoner, even after the mortal 
stroke or killing, may often be pertinent evidence as tending to show express malice
 at the time of the killing." The last two rules apply with great force to the facts
 in this case.
*13 (The Reporters will give the statement of facts, charge of the court, and the 
refused charge.)
We are of the opinion that the evidence supports the verdict. We have given every
 question raised by the record and brief of counsel our most careful consideration, 
such consideration as the gravity of the case demands, and have not discovered an
 error in the record such as will warrant a reversal of the judgment.
The judgment is affirmed.
Affirmed.
Tex.Ct.App. 1883.
SAM LEWIS v. THE STATE.
15 Tex.App. 647, 1883 WL 9007 (Tex.Ct.App.)
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