The law makes no provision for a third continuance ; and whether it shall be granted or not must rest in the sound discretion of the Court. It would require a strong case to warrant the control of that discretion, by this Court. In Hipp v. Huchett, (4 Tex. R. 20,) this Court said, “ The ‘‘ Legislature has not defined the requisites of a third applica- “ tion; and we may well hold, as a general rule, that it is “ addressed to the discretion of the Court, to be guided in its “judicious exercise, by the nature of the case, the circumstan- “ stances under which the application is made, and the object “ to be attained, viz.: a fair, as well as speedy trial of the “ cause.” This was a third application to put off the trial, made upon substantially the same grounds as the first.
The defendants had already had two continuances, and ample opportunity afforded them to prepare for trial; and there was no reason to believe they would be better prepared at another Term, or that the application was made for any other purpose than delay. One of the witnesses, on account of whose absence the continuance was asked, and whose absence had been the principal ground of the first, and was also a ground of the second application, was present and testified in the case. Under the circumstances the Court very properly refused to grant a further postponement of the trial.
It does not clearly appear that Hoffman was incompetent to ■sit as a juror. He did not state that he had formed or expressed an opinion as to the guilt or innocence of the prisoners, but only that he had some impressions from having conversed with the witness Bell (who testified only to the fact of his having seen the prisoners near San Felipe on the morning of the day of the commission of the homicide) and that he had no opinion only from rumor. If it is to be taken from his statement, that he had formed an opinion as to the guilt or innocence of the prisoners, it does not appear that it was such a fixed and settled opinion as would disqualify him to sit as a juror in the case, even though he had given expression to it. *730It may have been a mere hypothetical opinion, founded on the supposition that wliat he had heard was true, which would not incline his mind for or against the prisoner upon hearing the evidence. If such were its character, it would not disqualify the juror. (Whart. Am. Cr. L. 843 to 857.) But, if he was incompetent, he did no t sit upon the trial; nor does it appear that the defendants exhausted their challenges. And in McGowen v. The State, (9 Yerger, 184,) where the prisoner challenged the juror for cause, and his objection was overruled by the Court, though the juror was incompetent, and the prisoner afterwards challenged him preremptorily, it was decided, that as the record did not show that the prisoner had not exhausted his preremptory challenges, it was not an error for which the judgment would be reversed. We are of opinion that it does not sufficiently appear that the juror was incompetent to warrant this Court in reversing the judgment on that ground. But if it did so appear, upon the authority of the case cited, it would not be ground of reversal.
The statement of the juror Cloud, that his conscientious scruples respecting capital punishment would influence his A'erdict, was good cause of challenge. (White v. The State, 16 Tex. R. 206; Hyde v. The State, Id. 445; Whart. Am. Cr. L. 857.)
When the credit of the witness Donivan had been impeached by proof that he had made a statement to the witness, contrary to what he had testified on the trial, it was competent to admit evidence of his general good character for truth and veracity. (1 Greenl. Ev. Sec. 469.)
It is objected that the Court erred in admitting evidence of the dying declarations of the deceased ; because, it is said, the evidence shows that the deceased had hopes of living, at the time of making them. But we see nothing in the evidence to warrant such an inference. On the contrary, the evidence, we 'think, shows, very satisfactorily, that the deceased was fully impressed with his true situation, and aware of his approach*731ing dissolution ; and that his statements were made when he had no expectation or hope of recovery, but was under the immediate apprehension of death, or, as it is sometimes expressed, under a sense of impending death. The case comes clearly within the well settled rule respecting the admission of such declarations. (1 Greenl. Ev. Sec. 158; Roscoe’s Cr. Ev. 30 to 37; 1 Phil. Ev. 279, and N. 187, p. 251 of C. & H. Notes Part 1.) It has been uniformly held that the admission of this evidence does not infringe the constitutional right of the accused to be confronted by the witnesses against him. (Bill of Rights, Sec. 8; McDaniel v. The State, 8 Sm. & Marsh, 416; Anthony v. The State, 1 Meigs, 265.)
There is no error of law in the charge of the Court. Nor is there error in the charge, in its application to the case of the defendant Burrell, or in the refusal of instructions, considered in their relation to the evidence in his case. The only instructions refused which were proper to have been given, and which were not embraced substantially in the charge of the Court, were those which were applicable to the case of the other defendant; and, except the ninth, those which related to the effect to be given to circumstantial evidence ; or the tests of its sufficiency. But as to the guilt of the defendant Burrell, the evidence was not solely, or mainly circumstantial. It was direct and positive. There was proof positive that he was the voluntary agent who committed the homicide. There was therefore no occasion, in his case, to lay down the law with greater particularity, upon the subject of circumstantial evidence. There is no error in the ruling of the Court in giving or refusing instructions in so far as he is concerned.
But it is not so clear that there is not error both in the refusal of instructions, and in the charge of the Court in reference to the case of the defendant, Burns. If he be guilty, it is as a. principal in the second degree, being present aiding and abetting the commission of the homicide. To constitute the crime, of which the evidence tends to convict him, there must *732have been a participation, on his part, in the act. If he wsn cognizant of the intention of his co-defendant, and being present, was consenting, and it was but the carrying out of a common design, he is guilty equally with him who committed the deed; and upon this subject the general principle is correctly stated in the charge of the Court. But in order to implicate him in the crime, he must have been aware of the intention of his companion to commit it. His bare presence is not sufficient. For “ although a man be present whilst a felony is committed, “ if he take no part in it, and do not act in concert with those “ who committed it, he will not be a principal in the second de“gree, merely because he did not endeavor to prevent the felony, or apprehend the felon.” (Roscoe Cr. Ev. 213; Whart. Am. Cr. L. 6364; Whart. L. Homicide, 157.) Whether he was aware of the intention of his companion and participated sin it, was the fact to be proved, in order to implicate him in ¡the criminality of the act. That, as to him, was the factum probandvm, upon the proof of which his conviction must rest. And as to that, the evidence was wholly circumstantial. There was no positive proof that he was aware of the intention of his companion, or that he committed any overt act at the time, manifesting a criminal intention on his part. His presence was not, of itself, sufficient to inculpate him. It was not,yer se, evidence of guilt, or of any force as proof, only as considered with other circumstances conducing to prove his guilt. It was not the main fact to be proved ; for, of itself, it did not imply any criminality. But his presence and companionship, and his conduct at and before and after the commission of the act, were circumstances from which the main fact of his participancy in the criminal intention and design of his companion was to be inferred. It is plain, therefore, that, as to his guilt, the evidence was wholly circumstantial. Although joined with the other defendant upon the trial, he was entitled to a distinct consideration of the evidence in his case, and to have the law applicable to it given in charge to the jury. All *733the instructions asked respecting the legal tests of the suffieiehcy of circumstantial evidence to warrant a conviction were refused ; and the charge of the Court did not affirm in any distinct proposition, or embrace in substance, the instructions refused ; or inform the jury what is the proper test of the sufficiency of such evidence. The fifth and twelfth instructions were rightly refused ; the former, because not correct in the abstract; and the latter, because of the assumption which it contains, that there was no evidence in the case tending to show that Burns was privy to the intention of Burrell. The first and second, though not liable to the same objections, and though expressed in the language of a learned and philosophical elementary treatise, were not well adapted to the comprehension of a jury ; and we do not hold that it was error to refuse them, in the form in which they were propounded. Mr. Starkie and other elementary writers have undertaken to define, and doubtless have defined with all the precision and accuracy the subject is susceptible of, the tests of the legal sufficiency of circumstantial evidence. But it is finally admitted, that the circumstances which will amount to sufficient proof of a disputed fact, can never be previously defined. In their nature they can never be matter of general definition. The only legal test of which they are susceptible is their sufficiency to - satisfy the mind and conscience of the jury. (1 Greenl. Ev. Sec. 2; 1 Stark. Ev. 514; 14 Tex. R. 514.) It may well be doubted whether the giving of instructions to a jury in the form in which these were propounded, is ever proper ; for it is scarcely to be expected that they will readily comprehend and rightly apply them to the ascertainment of the fact. But in refusing these instructions it would have been proper, in view of the fact that the cases of the defendants were distinct, and that one of them depended solely on circumstantial evidence, to have instructed the jury as to the law on that subject. It would certainly have been more satisfactory, if they had been told that in order to convict upon such evidence, it should satisfy *734their mind and consciences, beyond a reasonable doubt, of the guilt of the accused ; and of what they must be satisfied in order to find him guilty. But as such instruction was not asked, we cannot hold the mere omission to give it error. But the ninth instruction asked is not liable to any objection. It is manifestly correct in point of law, and not objectionable in form. It was of vital importance to the defendant Burns, that the jury should be given to understand, that unless satisfied that he was cognizant of the intention of his companion, and in that sense privy to the killing—that is, privately knowing, (which is evidently the sense in which the term privy is used in the instruction,) it would be their duty to acquit him. It was the right of the defendant to have the jury so instructed; and it was what was proposed by asking the instruction in question. It may have been supposed that the substance of this instruction was sufficiently implied from the ninth and seventeenth propositions given in the charge of the Court. If the circumstances were of a more conclusive character and tendency, as they would be, if the evidence had further disclosed a motive for the commission of the homicide common to both defendants, it might perhaps be held that the charge of the Court was sufficient. But still, it seems difficult to deny the right of the defendant to have the distinct affirmation by the Court of a proposition so evident, and material to his case, as that contained in the ninth charge, which was refused.
But if there is no error in the refusal of instructions, for which the judgment may be reversed, we think there is such error in the charge of the Court as respects the case of Burns. The difference in the cases of the defendants does not appear to have been kept distinctly in view throughout the charge. The only instruction given, upon the effect of circumstantial evidence, was that embraced in the sixteenth proposition, that, “ circumstantial testimony must tei.d closely to prove the fact, or it is not, of itself, sufficient, but may still be entitled to great weight in connexion with positive testin ony.” This was ealeu*735lated to produce the belief in the minds of the jury, that the evidence of the defendant’s guilt was not wholly circumstantial. The Court evidently so regarded it; and it was true in reference to the defendant Burrell; but not in reference to the case of Burns. As to his guilt, the evidence was wholly circumstantial. As the distinction is not elsewhere taken in the charge, the evident tendency of this instruction was to mislead : and we cannot say that it may not have influenced the verdict of the jury. In a case of life and death especially, there should be no ground to apprehend that the accused had not a fair trial upon the facts of his own particular case. And because there does appear to be ground for such apprehension, tve think the defendant Burns ought to have had a new trial, to the end that the question of his individual guilt might be distinctly presented and passed upon by the jury, under a proper application of the law of the case.
Of the sufficiency of the evidence to warrant the conviction of Burrell, there can be no question; and as to him, there being no error in the judgment, it is affirmed. As to Burns, the judgment is reversed and the case remanded for a new trial.
Ordered accordingly.