The appellant was indicted, tried, and convicted of murder in the first degree, for the murder of Adolph Schachtrupp, alleged to have been committed in Harris County, October 31, 1878, and has appealed from the judgment, a motion for a new trial having been overruled. The first question presented for consideration is the overruling of the application for a continuance.
*68The application was based on the ground that certain witnesses averred to be material were not in attendance; to wit, Alfred Perkins, Jr., and Daniel Cleary, who, it is stated in the defendant’s affidavit, reside in Galveston County, and Austin Coward, who resides in Brazoria County. The diligence employed in order to procure the attendance of the witnesses Perkins and Coward, and the excuse for diligence as .to Cleary, are thus stated in the defendant’s application, to wit: “ That he has used due diligence, and all diligence in his power, to procure the testimony of said witnesses at this term, by causing attachments to be issued for the said witnesses, Alfred Perkins, Jr., and said Austin Coward, on the first day of January, 1879, and at once placed by the clerk of this court in the hands of C. M. Noble, sheriff of Harris County, Texas, the said witnesses residing at a point more accessible to the sheriff of Harris County than the sheriff of Galveston County; and an attachment was at the same time procured to be issued by this defendant for the witness Austin Coward, and placed in the hands of the sheriff of Brazoria County, Texas, in which said county Austin Coward resides ; which said attachments have been returned respectively by the sheriffs of said counties, Harris and Brazoria, not found as to said witnesses Alf Perkins, Jr., and Austin Coward, on the 28th of January, 1879. And the said defendant procured an attachment for Daniel Cleary, and the same was by the clerk of the Criminal District Court of Harris County at once forwarded, by due course of mail, to the sheriff of Galveston County, Texas; which said attachment has not been returned by said sheriff, and is not in court. The defendant attaches hereto the attachments in cáse of the witnesses Alf Perkins, Jr., and Austin Coward, and makes same, together with the return thereon, a part of this motion. * * * That the testimony of said Cleary was not known to affiant at the last term of this court, but as soon as same became known to him, he caused the *69attachment referred to above to be issued in the manner aforesaid.”
The materiality of the testimony of these witnesses is stated in the application as follows, to wit: “That he expects to prove by said witnesses the following facts, to wit: by Austin Coward, that he left Houston on Wednesday evening, the 30th of October, 1878, the day before the alleged killing of Schachtrupp, for the purpose of going to the Perkins neighborhood, on Clear Creek, a distance of some twenty-five miles from the residence of Schachtrupp; by said witness Alf Perkins, Jr., that the defendant spent the night of Wednesday, the 30th of October, 1878, in the neighborhood of Clear Creek, the distance from Houston as above set out; and by Daniel Cleary, that he and defendant came together at a horse-race, on or near Clear Creek, a distance of some twenty-five or thirty miles from the scene of the killing, on Thursday, the 31st of October, 1878, the very day the killing is alleged to have been done.”
The application further states that the affiant does not know of any other person by whom he can prove the above facts ; that the witnesses are not, nor is either one of them, absent with defendant’s consent, or by his procurement; that he expects to have the witnesses’ testimony by the next term of this court; that the testimony cannot be procured from any other source; and that this application is not made for delay, but that justice may be done.
We are of opinion that this application is entirely insufficient, as a second application, in two important particulars, to wit: in the diligence used to procure the attendance of the witnesses, and also as to the materiality. It was not such diligence as the law can recognize, that the defendant caused attachments to issue to one county, when it averred in the application that the witnesses reside in another county. Again, no reason is shown why the necessary steps were not taken to procure the attendance of the witnesses prior to the issuance of attachments, which is stated *70to have been January 1, 1879, for the witnesses Perkins and Coward, or that their importance was not known sooner; and as to the witness Cleary, there is no pretence at diligence to ascertain the importance of his testimony until even a later period than the date of issuing processes for the other witnesses. The Code of Procedure, among other things, requires (art. 518) that when a continuance is sought by the defendant in a criminal case, on account of or for the want of a witness, he must state the diligence which has been used to procure the attendance of the witness, and also the facts which are expected to be proved by the witness ; and the Code declares that “ it must appear to the court that they are material.” In examining the application in the light of the surrounding circumstances as set out in the transcript, we are of opinion that the court did not err in refusing the continuance and compelling the defendant to go to trial.
The second bill of exceptions complains of supposed error in admitting testimony for the State, over objections by counsel for the defendant. The most important of these complaints is, that the court admitted in evidence to the jury an indictment found by the grand jury against Bill Coward, a brother of the defendant, and who was then in arrest, charging him with the theft of a mule, the property of the deceased for whose murder the defendant was then on trial. As tending to show a motive for the perpetration of the crime, if such had been necessary, we are of opinion, from an examination of the authorities furnished by counsel for the State, the testimony was admissible; and so with reference to the statements of Bill Coward, on cross-examination, who, it seems, had been brought into court at the instance of the defendant, and the other objections embraced in the bill of exceptions and in the motion for a new trial.
The seventh ground set out in the motion for a new trial is the only other matter which seems to require special notice, and which is as follows : “ Because the verdict of the jury *71is contrary to the evidence in the case, in this : that the testimony of the defence showed the defendant was not in the city of Houston, nor in Harris County, when the killing was done, and the evidence for the State was conflicting and inferential as to the identity of the person.”
To our minds, the case is not unlike many others which have come before us on appeal, in which there is an irreconcilable conflict between the testimony of the State’s witnesses on the one hand, and those of the defendant on the other. In such case, the rule is well settled that it is the peculiar province of the jury, under the Texas system, to determine which set of witnesses shall have credence and which be disregarded in making a verdict.
The clear object of the defendant was to prove an alibi. On this proposition the jury evidently disregarded the testimony of the defendant’s witnesses. There does not appear to be any defect in the testimony of the prosecution; the only controversy was as to the identity of the defendant, and for this the testimony was ample, if the witnesses were credible. The question of the credibility of the witnesses was fairly and properly submitted to the jury by the charge of the court; and upon the testimony and the charge the jury have said, by their verdict, that, beyond a reasonable doubt, the defendant is guilty of the murder of Adolph Schachtrupp. The judge who presided at the trial refused to set the verdict aside, and in this we find no error.
So far as we are able to determine from the record, the appellant has had a fair and impartial trial, and has been legally convicted upon sufficient" and legal testimony; and though counsel was appointed to defend him on the trial below, it seems he was ably defended. The proof is abundant that the deceased was called out of his own house at nightfall, and shot down without warning or the means of defence or escape; and the jury and the court have, upon the evidence, determined that the accused, and -he only, is the guilty perpetrator of the crime. Under these circum*72stances, this court can, under the law, pursue but one course, notwithstanding that by it the accused loses his life. This he has by his own wicked act forfeited under the law, which it is the business of the courts to maintain and see properly enforced.
Finding no error in the judgment, it is affirmed.
Affirmed.