Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary, and he prosecutes this appeal. Appellant contends that the charge of the court ought not to have submitted murder in the first degree at all, as all of the evidence showed that the killing was upon a sudden impulse produced by some cause unknown. It is true that the testimony showed a killing based upon a very slight pretext. The very fact, however, that the evidence shows that there was occasion for the killing, indicates that the killing was malicious. It is not necessary, as has been repeatedly held, that any length of time intervene between the formation of the intent to kill and the killing, and no length of time is required to form the intent to kill upon express malice. The very fact that the killing was done without cause, indicates that the motive or intent was in a heart devoid of social duty, and one fatally bent on mischief. Appellant claims that the charge of the court on manslaughter did not state the particular facts upon which such a charge was predicated. The charge was a comprehensive one upon this subject, and did not restrict the jury to the statutory causes, but authorized them, in determining the adequacy of the provocation, if any, to consider all the facts and circumstances in evidence in the case, and if they found said facts and circumstances were sufficient to excite passion in the defendant's mind of such a character as to render him for the time being incapable of cool reflection, and that he killed the deceased under such circumstances, to find him guilty of manslaughter. We think this a sufficient charge. Appellant complains that he should have been allowed further time to answer the controverting affidavits filed by the State to his application for a new trial, on the ground of newly-discovered evidence. From the court's explanation to appellant's bill, it appears that the defendant did not ask further time to file counter affidavits until he had gone into a discussion of the motion. He should have craved further time before the argument of said motion. Appellant filed a motion for a new trial, because of the newly-discovered evidence of Mrs. K. Nitzschmann, Mary Ventura and D.B. Frank. The State proved by Cabell and others, that they got to the scene of the homicide soon after it occurred, and the body was apparently undisturbed, and that the defendant's vest was buttoned close up all the way; that on unbuttoning the same, on the inside vest pocket, *Page 178 a small pistol was found. The affidavit of D.B. Frank states that he thinks he reached the body of the deceased first; that he struck a match, and held it to his face; and that he noticed his vest was unbuttoned; and that he had not mentioned the matter until after the trial, when he told the appellant's attorney, R.D. Seay. On the trial of the case, the State proved by the witness, Black, (who was with the deceased at the time he was shot) that the deceased's vest was buttoned all of the way down, and close up under his neck; that he saw the pistol taken from his inside vest pocket, after he was killed; and that Sheriff Cabell arrived about twenty minutes after he was killed, and found the vest in that same condition. So that the witness, Frank, seems to have mysteriously found the body, and said nothing about the fact until after the trial; and if it is true, as he states, that the vest was unbuttoned, he must have seen it after he was killed, and after some one had unbuttoned the deceased's vest. If, however, Cabell and Black were both mistaken about his vest being buttoned up, we cannot regard his testimony as material. The homicide was committed at night. The witnesses say that it was a dark night. The parties, the deceased, who was with one Black, were walking in a path parallel with the appellant and some three or four others. There were high weeds between the two paths. None of the witnesses pretend to have been able to see anything that either of the parties did immediately prior to the killing, except one witness, Murray, who testified for the appellant that the deceased, as appellant ran across to the path where he was, threw his hand to his bosom. He could have done this as well with his vest buttoned as unbuttoned, and the demonstration would serve the same purpose in either event; so we cannot regard his testimony as material, even if it were not confronted in such manner as to render it altogether improbable. The affidavits of Mrs. Nitzschmann and Mary Ventura show that they lived not far from where the homicide was committed; that on the night of the homicide, and shortly before it occurred, the deceased and one William Black came to the house where said parties lived; that the deceased came for the purpose of buying a wagon; that while there, the deceased, Mason Miller, drew a pistol from his pocket, and began waving it about, and stated, "I've got this (meaning the pistol), and I am not afraid of anybody;" that, on request, deceased put up the? pistol, and they left, going towards one Houseman's place, about 400 yards distant. After a few minutes, they heard a pistol fired in the direction they had gone. Mrs. Nitzschmann immediately went down there, and found one hand of the deceased down by his side, and there was a large pistol by it, the same pistol that she had seen him with at her house a short time before. The way she came to see it, she was examining the body and stopped on it. Miller (deceased) was then dead. It appears that this witness and Mary Ventura were summoned as witnesses by the State, and were present at the trial, but were not examined. R.B. Seay, attorney for appellant, and appellant, both made affidavits that they knew nothing of their testimony, and had no reason to suspect that they knew the facts to which they swore in their affidavits. *Page 179 The State controverted these affidavits by Ben Cabell, the sheriff, and R.P. Sanderson, a mounted policeman; and they both state in their affidavits that, immediately after going to the body of the deceased, they went to the house where Mrs. Nitzschmann and Mary Ventura lived, and talked with said witnesses, and they informed them about the killing of Miller, and that neither of said witnesses knew that he had been killed, and they so stated, and furthermore stated that, it had been but a short time since he left their house, and that while there he behaved very nicely, and were surprised to hear that he had been killed. In the face of the controverting affidavits, in our opinion, the court correctly held that the newly-discovered evidence was not probably true. The court gave a charge on self-defense, though this is scarcely raised by the testimony. If the deceased had a pistol, the appellant could not have seen his pistol in the path in which he was traveling, and he could only have seen it when he sprang across the path, and confronted him with his own pistol. The parties evidently did not know each other. The witnesses did not seem to apprehend anything until the defendant jumped from the path in which he was traveling, over the weeds into the path where Miller was, and confronted him saying: "You move — you white-livered son-of-a-bitch, and I'll kill you." He held the pistol in Miller's face. Miller said: "You have got me, ain't you?" The defendant then fired, and the appellant immediately started off, saying: "That is my record." This is the testimony of the witness, Black, who was in the path with the deceased at the time of the killing. The witness, Frank Murray, who testified for the appellant, stated that, as he walked along, he heard a conversation start up between the two men in the other path and the appellant, who was with his party. The defendant made the remark: "It is a damned he; you will not do what you say you will do." The defendant then started for the man in the other path. Deceased threw his right hand up to his breast, and appellant fired, and killed him. This latter is the most favorable testimony for the appellant. We do not see how it can be re-enforced by the newly-discovered evidence, so as to make for the appellant a case of self-defense. By his own testimony, the appellant was the aggressor; and if the deceased had a pistol, and was about to draw it as the appellant advanced upon him, it would not make a case of self-defense for the appellant. So, in our opinion, there was no error in the court overruling the motion for a new trial on the ground of newly-discovered evidence. The judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent. *Page 180