This is a conviction for murder of the second degree, with punishment assessed at confinement in the penitentiary for thirty-five years. Upon application of the county attorney, a venire was ordered for 100 jurors, to be returnable on the 14th day of August, 1894. This order was made by the court, and entered upon the court's docket, but was not carried into the minutes by the clerk. A venire was issued in conformity with the order. After the return thereon, the minutes were made to conform to the order. In this there was no error.
A great deal of evidence was received, over the objection of appellant, tending to prove that appellant and John Willingham had been in the business of horse stealing; that they had stolen quite a number of horses from different persons; and that they, when they believed they were in danger of being arrested, resorted to their arms. Several *Page 199 fights were introduced in evidence under circumstances showing evidently that they were determined not to be arrested under any circumstances. Evidence was introduced tending to show, that after the homicide they did not propose to be arrested, and that to prevent this they would resort to deadly weapons to prevent even a legal arrest. Under the circumstances of this case, all this evidence was competent. What was this case? Appellant and Willingham were in possession of stolen horses. Williams, sheriff of Young County, and J.T. Horton, the deceased, at the request of Williams, went to examine some horses, to ascertain whether they were stolen property. Williams says that they, deceased and himself, went over to the south side of the public park (situated in the town of Graham), to look at the horses. "We looked at the the horses, but could not make out the brand, as it was not light enough. Horton and myself sat down on the park steps to wait for the men to come back for the horses. The horses were hitched on the south side of the park. We bad not been there long when the men came to the southwest corner of the square, and then walked on until they got the horses between us and them. Then they turned northeast towards the horses, and walked rapidly to where the horses were. Horton and I walked up towards them. The smaller man, whom I now identify as John English, stood in front and to the right of the larger man, John Willingham. The larger man was about to get on his horse, and 1 walked past the defendant, leaving him to my right, and halted the other man. Just as the words came from my mouth a pistol shot was fired just to my right, and I turned and saw Horton falling, and defendant and I went to shooting at each other. We shot three or four times each, and to the best of my knowledge the larger man fired one shot at me, and they both ran off. I fired one shot at the larger man as he ran off."
The evidence demonstrates that deceased did not fire his pistol at all. It is beyond dispute that appellant and Willingham were in possession of stolen horses. The court instructed the jury in regard to a homicide in prevention of an illegal arrest. If the sheriff or any other person had, with or without warrant or capias, arrested the party, they would have performed a duty, and, the arrest would have been legal. Article 343, Code of Criminal Procedure, provides: "All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable grounds to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay." In this ease, the appellant and his pal were in the possession of stolen horses. There was no mere supposition regarding the fact. The seizure was attempted openly. Here the sheriff, or any other person, without warrant or capias, had the right to seize the property, and arrest the *Page 200 thief or person in possession of the stolen property. The court should not have instructed the jury upon the hypothesis of an illegal arrest or attempt at arrest. But this charge was against the State and favorable to the appellant. But concede that the sheriff and Horton had the right to arrest appellant and Willingham. They had no right to make the arrest in a violent and wanton manner, resorting to the use of deadly weapons in the first instance, without resorting to milder means, unless the act of appellant or Willingham made this necessary. This rule was submitted to the jury by the charge of the court.
Appellant complains of testimony to the effect that the witness gave on the night of the homicide a similar version of the facts attending same as sworn to by him on the trial. Appellant, before this, had made an attack upon him, by trying to prove that his evidence was recently fabricated. Under this state of case, the State bad the right to sustain her witness by proving that just after the homicide her witness made the same statement in substance as that sworn to on the trial, and by this means disprove that his testimony was recently fabricated.
The charge of the court is objected to, because it instructs the jury, that to constitute implied malice there need not be the specific intention to kill the deceased. In murder of the first degree there must be the specific intent to kill the party actually slain. In murder of the second degree this is not required. In conveying this distinction to the jury, the learned judge used the language complained of. When the charge is read as a whole, it will not be found to contain any error on this part. That appellant endeavored to kill the man actually slain is evident, for with a deadly weapon he shot deceased through the heart, and of course killed him.
It is contended that Willingham, and not appellant, killed deceased. This is altogether immaterial, if it were true (which is altogether improbable), because the circumstances in this case show that Willingham and appellant had, before this homicide, determined that they would not be arrested for their thefts; that they would resist, all attempts to arrest them to the death.
Does the evidence support the verdict? It does, most abundantly. We have, though not written upon, carefully considered the other errors assigned. None are well taken. Appellant was properly warned that his statement made to the officer might be used against him. This he thoroughly understood without being warned.
The judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 201