The indictment in this case charges appellant with the murder of one W. K. Spaulding, in Walker County, on the twenty-fifth day of July, a. d. 1879. On his trial he was found guilty of murder of the first degree, and his punishment affixed, at death by hanging.
No error was committed by the court in overruling defendant’s application for a continuance. The evidence claimed to be desired from the absent witness was as to threats made by the deceased against the defendant’s life, but it was'not stated in the application that the witnesses, or any of them, in addition to the pretended threats, could or would prove that the deceased, at the time he was killed, by some act then done, manifested an intention to execute the threats so made. Without such proof, the evidence would amount to nothing, and under the law would not be regarded as any justification whatsoever. Penal Code, art. 608. So far as the statement of what the witnesses would prove, as set out in the application, therefore, it was wholly immaterial and insufficient. Besides this patent defect in the motion, it was made to appear that four of the witnesses therein mentioned were actually present at the trial, and two testified, denying any knowledge of such threats, and the other two were not called and examined by the defendant.
Nor was any error committed in admitting deceased’s dying declarations, as is complained of in defendant’s second and third bills of exception. A sufficient predicate for their admission, under the statute, was established most fully. Code Cr. Proc., art. 748; Lister v. The State, 1 Texas Ct. App. 739; Roberts v. The State, 5 Texas Ct. App. 141.
As to the fourth and last bill of exception, taken to the *376refusal of the court to stand the juror Mooring aside upon challenge for cause, it is sufficient to say that defendant got rid of him by a peremptory challenge, and the jury was finally completed without defendant’s having exhausted the peremptory challenges allowed him by law. In such state of case it has always been held that no objection would avail, since no injury was suffered. Grissom v. The State, decided at the present term, post, p. 386.
The charge of the court was much more favorable to the accused than, in our opinion, he was entitled to under the evidence ; for the court gave him the benefit of a charge upon murder in the second degree, when under the evidence the homicide was and could be nothing else than a most aggravated, unprovoked, and dastardly assassination. In support of this declaration we need only reproduce the evidence of Mrs. Frances Conkling, who was the only eye-witness to the shooting, and whose evidence bears every impress of truth and fairness. She says: “I am sister-in-law of W. K. Spaulding, and was living with him on the 24th day of July, 1879. About dark on that day the accused came to-Mr. Spaulding’s house. The moon was shining brightly. He talked with Mr. Spaulding in a friendly manner. They were sitting in the entry to the house. After the accused had been there about an hour, he asked Mr. Spaulding to go with him to the gate and keep the dog off of him. When the accused got out of the gate, and Mr. Spaulding started back to the house, the accused picked up a gun that was lying against a stump that was near the gate, and, turning round, said to Spaulding, ‘ God damn you, I have got you now,’ and fired one barrel of the gun at Spaulding. Spaulding fell, and was trying to get up when accused shot him again. Both shots took effect, — one in the back, a little to the left of the backbone, and the other in the hip. The two shots were fired one right after the other. The accused then ran down the road. Mr. Spaulding died the next day, about ten'o’clock in the morning. I was standing in the *377gallery, about eight yards from the gate. I could see the accused plainly when he shot the deceased. * ® *
The moon was so bright that you could see a man a hundred yards off.”
This testimony is fully corroborated by the dying declarations, and in certain portions by the other evidence as far as it went. Defendant offered no evidence.
Upon this evidence there can be no possible question of defendant’s guilt, or of the character of the crime which he has committed. Conscious of his own guilt, he immediately fled, and was upon the verge of going into the Indian Territory when his pursuers overtook and apprehended him.
There is not a single mitigating circumstance in the case as shown by the record. The murder was a cool, deliberate, wanton assassination, without even a motive being disclosed, unless we presume that he did it for hire, which, if true, would only, if possible, aggravate his crime.
There is no error in the judgment, and it is in all things affirmed.
Affirmed.