On the fifteenth day of August, 1863, one-Beard, who, it seems, was a prisoner confined in a guard-house at the time, was most foully assassinated in the town of Pilot Point, in Denton County, Texas. Nearly sixteen years thereafter, —viz., on the twenty-second day of March, 1879, —this appellant was indicted as the party who committed the murder, and, having been brought to trial on October 7, 1879, he was convicted, being found guilty of murder of the first degree, and his punishment affixed at confinement in the State penitentiary for the term of his natural life.
A number of questions were raised on the trial, principally with regard to the exclusion by the court of testimony offered on the part of defendant, and all of which are elaborately set forth in eighteen voluminous bills of exception.
With regard to the first bill of exceptions, which has reference to the ruling of the court in holding the juror Hazlehurst competent, and compelling defendant to challenge him peremptorily, though it is stated that afterwards defendant exhausted all of his peremptory challenges, there is no pretence that any of the jurors composing the panel, *580as subsequently made after the challenges were exhausted, were objectionable to defendant, or that either of them would have been challenged peremptorily if his challenges had not been exhausted. Unless objectionable jurors were finally put upon him, no injury was done him, and he has no just ground to complain. Myers v. The State, 7 Texas Ct. App. 653. We are aware that a different rule obtains in some of the other States, as for instance in Kansas, where it is held that if the court has improperly overruled a challenge for cause, the error is ground for reversal, notwithstanding the juror is afterward challenged peremptorily by the defendant, if the defendant exhausts his peremptory challenges, because the defendant has thereby been deprived of his right to peremptorily challenge one of the jurors who sat upon the trial. The State v. Brown, 15 Kan. 400; 2 Hawley’s Am. Cr. Rep. 423. Instead of the defendant’s being deprived of his peremptory challenge, as stated, he has in fact exercised it, in our opinion, for the vciy purpose for which the law, as a matter of grace, conceded it to him, viz.: to rid himself of an objectionable juror. If other jurors, free from objection, are put in the box after his challenges are exhausted, he has no need for further, challenges; since all the law demands, and all a defendant could ask, is that the jury which finally tries the case is an impartial one. Unless objection is shown to some one or more of the jury who tried the case, the antecedent rulings of the court upon the competency or incompetency of jurors who have been challenged and stood aside will not be inquired into in this court. But if one objectionable juror is forced upon the defendant after he exhausts his peremptory challenges, then he will be entitled to have the action of the court reversed.
Another bill of exceptions was saved to the refusal of the court to permit defendant to retire from the court-room and be present at the conference of defendant’s counsel and his witnesses who were under the rule. We know of no *581law, and counsel have cited none, in support of defendant’s right in this respect. When witnesses are placed under the rule, it is a matter entirely discretionary with the court as to whether any one shall be permitted to confer with them, and, if permitted, to prescribe the terms and manner in and upon which such conference shall be conducted. Brown v. The State, 3 Texas Ct. App. 294. We see no error in the ruling in this particular.
It would be a needless as well as profitless consumption of time to attempt to notice seriatim the other fifteen or sixteen bills of exception, relating to evidence excluded by the court as inadmissible. The substance of these various bills may be grouped together and formulated under three subdivisions: —
1. The State’s evidence having established that the deceased (Beard) was under guard when killed, the defendant proposed to inquire into the causes of his (deceased’s) imprisonment and detention, with a view, as alleged, of showing the following facts, viz. : That the people of the county had organized a vigilance committee to investigate and suppress a supposed conspiracy formed by negroes and white men inimical to the Confederate government to destroy the lives and property of the people of Denton and the adjoining counties; that numbers of citizens had been arrested, tried, punished, and some actually hung, by this committee; that deceased (Beard), who had been arrested as one of the conspirators, had subsequently turned public informer, and that from information derived from him old man Holt, the father of defendant, with others, had been arrested, imprisoned, placed in irons, and their lives put in great jeopardy; that on the day of the killing a large number of persons, drawn thither by these cirumstances, were in Pilot Point, and the public excitement was intense.
The right claimed by defendant to have these facts adduced in evidence was claimed upon the ground that they *582would tend to show that if defendant killed Beard, then the killing, owing to snch surroundings, was the result of a sudden, rash, inconsiderate impulse or passion, and not the act of a calm, sedate, deliberate mind or formed design, and consequently was not murder of the first degree.
2. That, Beard having informed upon other parties, these parties had also threatened to take his life, and had equal opportunities with defendant to do so; that Henderson Holt, a brother of defendant, had not only made such threats, but had prepared himself to execute them, and a short time before the killing was seen going in the direction of the house in which Beard was confined. Not only this, but that Henderson Holt, on the evening after the killing, and again on the next morning, told parties that he had in fact committed the deed.
3. That, when the State had proven that immediately after the killing the crowd said the_ slayer was this defendant (Hons Holt), defendant had the right and was entitled, on cross-examination of the witnesses, to have them state the reasons assigned by the crowd at the time why defendant had killed Beard.
All this evidence was, upon objection by the State, excluded as hearsay, irrelevant, and inadmissible, and not res gestae, or calculated to throw light upon the transaction.
The case, strictly speaking, is not one of circumstantial evidence alone. For the facts developed show that at the time of the killing there was no one in the house but Beard and the party who killed him. There can be no question of this fact. They further show, from a number of witnesses, that this defendant, whom they knew and recognized then and now, just an instant or so before the killing, was seen, with pistol in hand, to approach and enter the house ; and immediately thereafter several shots are heard in the house, and defendant is again seen to emerge from the house by the door at which he had entered, and to go in the direction of his horse, which he had mounted, or was attempting to mount, *583when he was arrested. Entering the house instantly, the witnesses found only the dead body of the murdered man; and there was no opportunity for any one to escape from the house save by the door through which the defendant had passed in going in and coming out, because all other sources of ingress and egress had been and were securely fastened. Under such circumstances there can, then, we conclude, be no doubt that defendant, and he alone, committed the deed.
Ho error was committed by the court in excluding evidence that other parties had threatened to kill deceased, n'or that Henderson Holt had admitted that he had killed him. Mr. Wharton, in his work on Criminal Evidence, says : ■“ On an indictment for murder, the admissions of other persons that they killed the deceased, or committed the crime in controversy, are not evidence, and evidence of threats by other persons is inadmissible.” Whart. Cr. Ev. (8th ed.), sect. 225; Sharp v. The State, 6 Texas Ct. App. 650; Boothe v. The State, 4 Texas Ct. App. 202; Walker v. The State, 6 Texas Ct. App. 576 ; Bowen v. The State, 3 Texas Ct. App. 618; 58 Ala. 372.
So far as the testimony is concerned which it is claimed would show such condition of circumstances as would tend to make the case one of a killing upon sudden impulse, and not murder of the first degree, the evidence fails to disclose that, at the time of the killing, the father of defendant was then held in arrest, chains, or imprisonment by the vigilantes. If he had previously been arrested, he must have been also released ; and if any threats had been made against him, there is no evidence that they were about to be put into execution at the time by any one. On the contrary, defendant’s own witness, Harrison Holt, testifies that the defendant, his father, and his brother were all at the father’s house, twelve miles from Pilot Point, on the evening and night after the killing. It is impossible that the Holts, or either of them, could have been in any immediate or pressing danger of mob violence of any sort, from information derived *584from Beard or any one else, at the time of the homicide. Such pretence is positively rebutted by the fact that, though defendant himself was arrested immediately after the killing, with the blood of his victim warm upon his hands, and when any previous excitement or animosity would naturally have been intensified to the highest pitch. by the act, he was not only not killed, or even imprisoned for the deed, but went home unharmed and unmolested with" his father that evening, and stayed, as testified by Harrison Holt, at his father’s house that night.
“ No apprehension of danger previously entertained will justify the commission of homicide : it must be an apprehension existing at the time the prisoner struck the blow.” The People v. Lamb (41 N. Y.), Horr. & Thomp. Cases on Self-Defence, 648.
If his father had been imprisoned previously, but was not at the time of the killing, then, if the killing was to avenge the previous wrong, the defendant was actuated by revenge and malice, and the killing could have been nothing short of murder in the first degree. But take the other view of the case : his father was not under arrest at the time, but, on account of information derived from Beard, he was likely to be arrested at some future time and placed in danger, wherefore defendant took Beard’s life. Will any one pretend to say that such a killing would not necessarily imply premeditation and deliberation, and could consequently be nothing short of murder of the first degree? We think not. With the facts as they really existed, the court could have seen nothing in the case but an assassination, — a murder in the first degree, — and the evidence sought could in no way either elucidate, justify, or excuse the homicide, and was wholly irrelevant.
Again: The court did not err in refusing to permit the witnesses, after stating that the crowd had said that Hous Holt committed the deed, to state on cross-examination what reasons or causes, if any, they gave why he killed him. *585The testimony was irrelevant, and was hearsay. Doubtless, if the testimony as to what the crowd said about its being Hous Holt had been objected to at the time by defendant, it also would have been excluded as hearsay. Bradshaw v. The Commonwealth, 10 Bush, 576.
With regard to res gestee Mr. Wharton says: “ The question is, is the evidence offered that of the event speaking through participants, or that of observers speaking about the event? In the first case, what was thus said can be introduced without calling those who said it; in the second case, they must be called.” Whart. Cr. Ev., sect. 262. Again : “ On the same principle, the cries of a mob, led by parties tried afterwards for riot and unlawful meeting, can be received against the defendants, no matter at what time during the continuance of the riot such cries were uttered. But the comments and criticisms of observers cannot be introduced as res gestee. Such persons must be called in court and examined as to what they saw. Their statements made at the time are hearsay.” Id., sect. 263.
“ Hearsay evidence is incompetent, as a general rule, to establish any specific fact which is in its nature susceptible of being proven by witnesses who can speak from their own knowledge.” Bradshaw v. The Commonwealth, 10 Bush, 576 ; 1 Greenl. on Ev., sect. 99. Our conclusions are, that the remarks of the crowd which were proposed to be proven were not res gestes, but were hearsay, and inadmissible.
One ground of the motion for new trial was that the jury carried with them into their retirement, and consulted in settlement of their differences about the evidence, a certain statement of the testimony taken by attorneys on the trial, and inadvertently carried out by the jury with the papers in the case. If the verdict could be impeached by a juror’s making affidavit of such fact, then the counter-affidavits explain and settle the matter, because they show that the statement so taken and used by the jury was the one prepared and made out by defendant’s own counsel; *586and it is but fair to presume, in the absence of any proof to the contrary, that he could not have suffered any injury by or from it.
It only remains for us to say that we have given this case our most serious and mature consideration, and we find no material error in the conduct of the proceedings on the trial. The chai'ge of the court fully and ably met the issues, and the evidence, in our opinion, discloses a most cold-blooded, deliberate assassination of an unarmed, defenceless prisoner. There can be no excuse for such a crime. True, it was in times of war and bloodshed, — in times of lawlessness and murder,—long years ago, when it would almost seem that the dead past should have buried its dead ; but those facts do not justify or extenuate the horrible crime, and justice long delayed demands his punishment, after giving him a fair and impartial trial according to the due course of the law of the land.
There is no occasion to disturb the verdict and judgment, and they are therefore in all things affirmed. ,
Affirmed.
Hurt, J., having been of counsel in the court below, did not sit in this case.