When the facts of the case and the manifest theory of the prosecution are considered, the alleged objectionable evidence as set out in appellant’s first, fifth, and sixth bills of exception seems equally pertinent to the issue then before the jury for determination, and clearly admissible under the rules of evidence as frequently expounded by the courts.
The deceased and the man Eose were brothers-in-law to each other, lived together on the farm of the defendant, and constituted his only tenants. The appellant’s ill-feeling • seems to have been directed at both jointly, and his apprehensions of personal danger, if any such existed, were indulged in by him with reference to both. It was important to the prosecution that the date of the homicide, as well as the date of certain declarations made and acts done by the appellant immediately anterior to the homicide, should be fixed as definitely as might be practicable, and that the two men against whom he entertained a feeling of bitter hostility were separated, and one of them was safely lodged in jail, through the direct instrumentality of appellant, *605only a few hours before the assassination of the other, and when the latter was evidently upon his return home from accompanying the former to the jail. If appellant was in fact the assassin, — and this was the only subject of inquiry,— but few facts could in their nature be more significant than that he, by means of a trumped-up accusation against one of his adversaries, had succeeded in removing him from the theatre of his proposed operations, and at the same time had procured a most favorable opportunity for wreaking his vengeance upon the other, when he was deprived of the help of his friend and was returning to his home in the darkness of night and unsuspicious of danger.
The procurement of the warrant of arrest for Eose, the circumstances leading to its issuance and accompanying its execution, were all so interwoven with the whole transaction leading to the death of Gardner, the deceased, as to be really part and parcel of that culmination, and illustrative not only of the general purpose and intent of the appellant, but also strongly criminative of him as the guilty perpetrator of the homicide. By it was shown motive, preparation, and opportunity, and no reason is perceived why the State should have been deprived of it. Preston v. The State, ante, p. 30.
Nor is any error perceived in the action of the court in admitting evidence touching the clothing found near the body of the deceased, and the rope found in the house of appellant after the murder. From the explanation of the presiding judge, appended to the bills of exception, it appears that these articles were not in fact introduced in evidence, but were produced by the prosecution and shown to the witnesses for purposes of identification, and after both had been described. This evidence was admissible. Burrill on Cir. Ev. 254-260. It does not appear by positive testimony that the clothing found was the clothing of the deceased ; but that is a natural if not a necessary inference, when viewed in connection with the fact that the body, *606when found, was almost entirely denuded. . The form in which the clothing was when found— carefully bundled up, and concealed some distance from the body — is not without some significant bearing; but if immaterial, no possible prejudice could have resulted to appellant. A rope or some similar instrument evidently constituted an important factor in an attempt at concealment of the dead body. The evidence establishes most convincingly that after the assassination had been accomplished, the person of the deceased was stripped of its clothing, a rope or similar appliance was fixed about the neck, and the body thus dragged for six miles across prairies studded with mesquite bushes, chapparral, and pfiekly-pear thickets, and finally concealed in a thicket on Little Pond Creek. When found, the neck of the body, as stated by a witness, was cut in deep all around, as if done by a rope around it.”
Certainly the finding of a rope in the house of appellant, after his arrest, which, from the marks and indications upon it, had evidently been used for some similar purpose, was a fact competent to go to the jury; and the fact that the witness produced the rope and described it to the jury does not render the proceeding erroneous, especially as no ground of objection was shown or urged before the court. The exhibition of the articles in the condition in which they were found was more satisfactory, in connection with the other circumstances, than any description that could have been given by the witnesses, even had the articles been actually offered in evidence. As said by Starkie, “ upon the trial of a prisoner on a charge of homicide or burglary, all circumstances connected with the state of the body found or house pillaged, the tracing by stains, marks, or impressions, the finding of instruments of violence, or property, either on the spot or elsewhere, — in short, all visible vestigia, as part of the’transaction, are admitted iu evidence for the-purpose of connecting the prisoner with the act. Such facts and circumstances have not improperly been termed inanimate *607witnesses.” 1 Stark. on Ev. 66; The People v. Gonzalez, 85 N. Y. 49; Gardner v. The People, 6 Park. Cr. 155; Wynne v. The State, 56 Ga. 113; Campbell v. The State, 12 Ala. 40; The Commonwealth v. Pope, 103 Mass. 440; The State v. Outerbridge, 82 N. Y. 617; 1 Whart. on Ev., sect. 346; Whart. on Hom., sect. 674.
The remaining objection to the competency of testimony relating to the production of the testimony before the examining court may be disposed of with the single remark that the record was handed to the witness Weiss, upon his own request, simply for the purpose of refreshing his memory as to certain declarations made by defendant to the witness, and for no other purpose, and the witness was properly cautioned by the court that he must testify from his memory, as refreshed, and not otherwise. It is hardly necessary to say that this procedure was legitimate. Whart. on Ev., sects. 516, 526.
The charge of the court is complained of in numerous particulars, but upon inspection is found to be a fair and distinct presentation of the law applicable to the case; containing, however, an inaccuracy wholly immaterial in view of the evidence. Upon the subject of implied malice the court instructed the jury as follows: “When one unlawfully kills another, and such killing is not shown to have been done with express malice, as before defined, but it is shown that the killing was done without any, or a considerable provocation, here the law presumes malice, and malice so presumed is denominated implied malice.” While this is not an exact definition of the term “ implied malice,” yet we cannot say that it did not sufficiently, convey to the jury the legal signification of the term in a manner at least as favorable to the defendant as he could demand, had the facts in the case called for any charge upon the subject. The law implies malice upon proof of a voluntary homicide, and the absence of any facts in evidence which may tend on the one hand to establish the existence of express malice in the mind *608of the slayer, or on the other hand to show justification, excuse, or mitigation. Harris v. The State, ante, p. 90; Douglas v. The State, ante, p. 520. The case as made, however, did not call for any instruction as to the law of murder in the second degree, though generally in all prosecutions for murder it is the safer-practice to instruct as to both degrees. The evidence elicited developed a deliberate assassination, and nothing else, and the sole question at issue was as to the identity of the perpetrator. No legitimate inference arises from the testimony save that the deceased was waylaid and killed, and his body subsequently concealed. All the indicia of the transaction manifests a killing with a sedate, deliberate mind, and formed design; which design was clearly and convincingly evidenced by all the external-circumstances attendant upon and subsequent to the main' transaction, and which fully discover and illustrate that inward intent. The particular instruction, therefore, even if erroneous, was not demanded by the facts and circumstances in evidence, and cannot constitute a reversible error upon appeal.
■ The charge upon the law of circumstantial evidence, though perhaps unnecessarily diffuse, contains fully the essential principles of the law governing convictions upon that character of evidence, as found scattered throughout our reports. It has been frequently held that no exact formula need be employed in giving such an instruction to the jury (Loggins v. The State, ante, p. 434), but, as a matter of practice, courts can very well follow the rule in Webster’s case, as concisely stated by the reporter, and which is not susceptible of improvement. See Henderson v. The State, 14 Texas, 514.
The first instruction requested by appellant is found substantially embodied in the main charge, and the second could not be the law in any case, and was properly refused.
The sufficiency of the evidence to support the -verdict is *609the remaining subject of inquiry, and, in view of the gravity ■of the issue, to this we have addressed ourselves with unusual care. Apart from the declarations by appellant to ■other persons, after the homicide, and which may be regarded as tantamount to an admission of guilt, the salient, inculpatory facts established point with unerring if not conclusive certainty to the accused, and to no other person, as the guilty perpetrator of what can only be regarded as an assassination. The attempt to establish by evidence a theory that another did the act, resulted in total failure in assigning to that other any motive for such a deed, or even an opportunity for its commission, and left the whole evidence pointing, with its strong array of indubitable facts, at the appellant. When examined critically, there is nothing left to be supplied in the evidence. The motive, the opportunity, the conduct and appearance of appellant after the fatal transaction, the instruments by which the deed was consummated, and which were found in his house, are so plainly shown, and surrounded with such significance, that a jury could not well mistake the locality of the guilt; and the conduct of appellant subsequent to the homicide, and up to the time of his arrest, serve to illustrate with peculiar emphasis that mj^sterious law which often impels the murderer to furnish most satisfactory proofs of his guilt in a vain attempt to manifest his innocence.
In passing upon the sufficiency of evidence in this tribunal, it is only necessary that we determine that the verdict is supported by, and is not contrary to, the evidence ; but in this particular case we are constained to say that, from the •evidence, the guilt of appellant was established beyond a reasonable doubt, and the jury could no.t have found otherwise than for murder in the first degree. After a fair trial, the appellant has been convicted according to the forms of law, and the duty of this court is ended when it is so declared. Under a law which gave the jury of his own selection the privilege of affixing a milder penalty, they have *610determined upon their oaths that the penalty of death only, was adequate to the offence committed, and in the exercise; of a prerogative vested solely in them, they have affixed that punishment. Finding no error in the proceedings, and that the verdict is not contrary to the evidence, nothing remains for us to do, in accordance with the duty imposed upon us by law, but to affirm the judgment, and it is so ordered.
Affirmed.