Ben Krebs and James Preston were jointly indicted in the District Court of Montague County for the murder of William England, charged to have been committed on Axigust 26,1876. The case was tried at the October term, 1876, of said court.
On November 9, 1876, the defendant Krebs filed an application for a severance, which was properly sworn to by him. In it he stated that “ a severance in this cause is requested for the object of obtaining the evidence of James Preston, who is jointly indicted with affiant (Krebs) ; that such evidence is material for his, affiant’s, defense; and *357that affiant verily believes there is no evidence against the said James Preston; therefore affiant asks that James Preston be tried first.”
On the same day defendants, Krebs and Preston, filed a joint application for a continuance of the cause. The court, as appears from the transcript, acted on the application for a continuance the day it was filed, and granted it as to the defendant Preston, and overruled it as to the defendant Krebs. Krebs was ordered by the court to be placed on trial; to which ruling of the court he duly excepted.
On the next day, to wit, on November 10,1876, as shown by the minutes of the court as copied in the transcript before us, the defendant’s motion for a severance was acted on by the court. We copy the following as a portion of said minutes : “And the defendant Krebs demands a severance, and the court, after being fully advised in the premises, is of opinion that the law is for defendants. It is, therefore, ordered, adjudged, and decreed by the court that the parties in the above cause be allowed to sever.”
The bill of exceptions number 1, taken by the defendant, states that the court first acted on defendant Krebs’ application for a severance, granted the same, and ruled that Preston should be first tried; that thereupon the defendants both applied for a continuance of the cause, which was granted as to Preston and overruled as to Krebs, who was then placed upon his trial; to which said order, and placing Krebs upon his trial, and not trying Preston first, Krebs excepted, as appears by his bill of exceptions ; Krebs claiming that, a severance having been once allowed, and the defendant Preston ordered to be first tried, a continuance of the cause as to Preston, under the law, necessarily and legally continued the cause against him (Krebs); that, by placing Krebs upon trial first, the object sought by said severance was and is defeated, to wit, the procuring of Preston’s testimony on the trial.
*358We believe that the court should have first acted on the motion for a continuance, before taking up defendant Krebs’ application for a severance. The statute never contemplated that an application for a severance should be heard before a motion for continuance. When two or more defendants are jointly indicted, and have announced ready for trial, they may sever on the trial. Article 587 of the Criminal Code, as it was originally passed, read as follows : “When two or more defendants are jointly prosecuted, they may sever on the trial, at the request of either.” Before this article was amended and a severance was granted, the practice was to allow the state’s attorney to elect the defendant he would first put on trial.
This article was amended by the act of March 16, 1874 (Gen. Laws 1874, p. 29, ch. 30), so as to read as follows: “ Art. 587. When two or more defendants are jointly prosecuted, they may sever in the trial, at the request of either; and, if the defendant upon whose application the severance is allowed shall file his affidavit stating that a severance is requested for the object of obtaining the evidence of one or more of the persons jointly indicted with him, that such evidence is material for his defense, and that he verily believes that there is no evidence against the person or persons whose evidence is desired, such person or persons shall be first tried.”
Upon an examination of defendant Krebs’ application for a severance, we find that it strictly conforms to the requirements of said article 587 as amended, and, under the law, the action of the court in putting Krebs on trial first, we believe, deprived him of a clear legal right.
When two defendants are jointly indicted, and an application for a continuance is made by one of them, if the application is sufficient as to one of them, it operates a continuance as to all of them. The pleader could always obviate this by drawing separate bills of indictment against *359each defendant. Far be it from us to reflect upon the county attorney for doing otherwise in this instance; for his conduct cannot be too highly commended for trying to ferret out the guilty parties, and leaving nothing undone which in his judgment he believed necessary to enforce the law.
The court did not err in permitting the witnesses for the state to testify that other members of William England’s family were killed at the same time that he was. There is no rule of evidence which would exclude from the jury all that was said and done, on the occasion of the killing, which is connected with, and a part of, the same entire transaction. 1 Whart. Cr. Law, sec. 649.
It is insisted that the court erred in permitting the ‘ ‘ dying declarations of Mrs. Selina England to go to the jury; that there was no such legal foundation laid by the state, for the admissibility of these dying declarations, as the law imperatively requires. ’ ’
“ The dying declarations of a deceased person may be offered in evidence either for or against a defendant charged with the homicide, under the restrictions hereafter provided. To render the declarations competent it must be satisfactorily proved (1) that at the time of making such declarations he was conscious of approaching death, and believed there was no hope of recovery; (2) that the declaration was voluntarily made, and not through persuasion of any person; (3) that such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; (4) that he was of sane mind at the time of making the declaration.” Pasc. Dig., art. 3125.
We think it was satisfactorily proved that, at the time the statements of Mrs. Selina England which were testified to by certain of the state’s witnesses were made, she was conscious of approaching death, and believed there *360was no hope of recovery. We also believe that these statements were voluntarily made by her, and not through the persuasions of any person, and'not in answer to interrogatories calculated to lead' her to make any particular statement ; and that she was then of sane mind.
In order to make dying declarations admissible in evidence the deceased must not only be in a dying condition, but he must actually believe that he is so. This belief may be inferred from the statement of the party, and also from the nature of the wound and. other circumstances. It is not necessary that such apprehension of death should be in a certain number of hours or days. It is proper we should here state that it only appears inferentially from the record that Mrs. Selina England was dead at the time of the trial. The dying declarations of a party are only admissible in evidence, on a trial of a homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. 1 Greenl. on Ev. 156; Lambeth v. The State, 23 Miss. 323; Whart. Cr. Law, sec. 675; Roscoe’s Cr. Ev. 31, and authorities cited; Stark, on Ev. 32; Wright v. The State, 41 Texas, 246.
It is not insisted by the prosecution that the declarations of Mrs. England constituted any part of the res gestee. Dying declarations are restricted to cases of trial for the homicide of the declarant. In this case, the death of William England being the subject of the charge, the “ dying declarations ” of his wife were improperly admitted in evidence.
We find no error in the charge of the court. There is nothing in the record, however, to show that it was ever filed among the papers of the cause by the clerk. When the court has charged the jury, the charge should first be handed to the clerk, and by him be filed, before it is handed to the jury; and the transcript should show the date of its filing in every criminal case. See the case of Charles *361Haynie and authority cited, decided by this court during the present Tyler term, 1877, on this point, ante, 223.
The verdict of the jury is as follows : “ We, the juror, find the defendant guilty, and sess his punishment deth.” The jury were polled, and, when called, each juror announced separately to the court that the above was his verdict. The verdict is not artistically drawn, and is not a good specimen “on a question of orthography;” still it can be understood, and is intelligible. “ Bad spelling does not vitiate a verdict when it has the requisites of being certain and intelligible.” Koontz v. The State, 41 Texas, 571.
The defendant, in his motion in arrest of judgment, suggests to the court that judgment in said case cannot be legally rendered against him upon the verdict, and that it does not warrant the pronouncing of a sentence of the death penalty, etc. Article 2268 of our Criminal Code (Pasc. Dig., art. 2268) provides : “If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree, and, if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty ; and in either case, if they find the offense of murder to be of the second degree, they shall find the punishment.” The verdict in this case finds the defendant guilty, but does not find whether it is of the first or second degree, and is, therefore, insufficient to support the judgment. Whatever object the Legislature had in enacting said article 2268, it is plainly written in the Code; and until it is altered or repealed it is the duty of the courts to observe and enforce it.
In the case of Buster v. The State, 42 Texas, 315, in which the defendant was on trial for murder, the jury returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment to be hung by the neck until dead.” Our Supreme Court say such a verdict is insufficient to support *362a judgment. In the case cited the indictment charged the defendant with murder in the first degree. See, also, the case of Colbath v. The State, decided by this court at the Austin term, 1877, in which it was held that a similar verdict would not support a judgment. 2 Texas Ct. of App. 391.
We have not deemed it necessary to notice all the points made by counsel in behalf of the accused. Our experience teaches us that often in the plainest cases the courts of the country, in their zeal to punish crime, deprive defendants of legal rights. Such haste too often delays, instead of advancing, the ends of justice. The substantial purposes of justice are best subserved by adhering strictly to technical long and well-established rules, and to the plain requirements of the statutes.
Reversed and remanded.