“Criminative or inculpatory circumstantial evidence ” is mainly derived, according to Mr. Burrill, “from two principal sources—the conduct of the party accused, and external objects, with their appearances as indicative of such conduct.” External objects, or “physical facts” as they are termed, are admitted in evidence for the purpose of both establishing the crime and to indicate, trace out and discover the criminal. (Burrill on Cir. Evid., 252.) Amongst such facts or circumstances are the instruments of the offense and *48the appearances of such instruments, such as signs of a fire arm having been recently discharged, etc. (Ib., pp. 254 and 255.)
Where the use of fire arms is as common as in this country, it can scarcely be said to be a matter of peculiar skill to determine whether or not a fire arm has been recently discharged. If, however, it is necessary that a witness should qualify himself as an expert before his testimony is admissible as to that fact, then we think the witnesses in this case qualified themselves sufficiently before testifying as to their opinion on the subject. They showed they had had experience in the use and handling of fire arms, and stated that they inserted the finger into the muzzle of the defendant’s gun, and when the finger was withdrawn it was wet and black, from which, in their opinion, the gun must have been recently discharged. (Connor v. Sturtevant, 117 Mass., 122.) As expert testimony, the court did not err in admitting the evidence.
Defendant’s second bill of exceptions was taken to the admission, over his objections, of the testimony of the witness Rogers, and also of the sheriff Warden, with regard to footprints near the scene of the shooting, and the fact that they testified that the witness Rogers put on a boot belonging- to defendant, which the sheriff had taken off defendant’s foot, and applied it to a track which had been found there in a pile of soft dirt, which it fitted, and made other tracks with it which the witnesses examined and compared, and found them to correspond in size, shape, appearance and peculiarity, both with the said track and shape and size of the boot.
Footprints and other marks upon the soil are physical facts, and are legitimate evidence. “The character of footprints leading to the scene of murder, and their correspondence with the defendant’s feet, may always, when defendant’s agency is disputed, be put in evidence. Such evidence is not by itself sufficient to sustain a conviction. But it is an item of circumstantial evidence proper for consideration as such.” (Whart. on Hom., § 705; Hubby v. The State, 8 Texas Ct. App., 597; Walker v. The State, 7 Texas Ct. App., 246; Wharton on Crim. Evid., 8 Ed., § 795.)
In The State v. Outerbridge, 82 N. Y., 617, where circumstantial evidence was relied on to convict of murder, and, as a link in the chain of such evidence, it was held competent to show that a bullet taken from the body of the deceased and one taken from a tree near the spot where the body was lying, fitted the *49moulds found in the possession of the prisoner. Nor was it held error in the judge to refuse to withdraw such evidence from the jury when the result of interrogating the State’s witness by the prisoner’s counsel was the exhibition and comparison of the bullets and moulds in view of the jury. Whatever may have been the opinions or doubts of courts with regard to the legality and admissibility of such evidence formerly, that it is legal and admissible is now too well settled to admit of further controversy. And in this case the action of the court was not erroneous.
Complaint is made of the charge of the court. We have been able to find no error of omission or commission in its presentation of the law applicable to the facts of the case. There was no occasion for discrimination between express or implied malice, or even to explain the latter character of malice to the jury. Had death resulted from the shooting, it could have been nothing less than murder of the first degree—murder on express malice, and murder by lying in wait; an assassination, in fact.
We have been unable to perceive any error in the proceedings which have resulted in the judgment of conviction in this case; and the evidence, in our opinion, being amply sufficient to sustain the judgment, it is in all things affirmed.
Affirmed.
Opinion delivered April 11, 1883.