Defendant has been convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, upon an indictment of which the charging portion reads as follows: “That F. W. Bohannon, on or about the seventh day of December, one thousand eight hundred and eighty-one, in the county of Fort Bend and State of Texas, did then and there with malice aforethought kill J. L. Knox, by shooting him with a gun; contrary to law and against the peace and dignity of the State.”
It is assigned as error by the defendant that the court erred in overruling exceptions to the indictment. These exceptions, specifically stated, are, 1, that it is not alleged that Knox, the murdered man, was a “reasonable creature;” and 2, that it does not allege “express malice,” or any other facts constituting murder in the first degree, and is therefore not a good indictment for murder in the first degree.
It has never been held necessary that the indictment should allege that the deceased was a “human being,” or a “reasonable creature,” although in the definition of murder one or the other of these descriptions of the deceased are used. To allege the name of the person killed, or that his name is unknown, is a sufficient allegation that the deceased was the subject of murder, as it will be presumed that the indictment is understood according to the import of the common language used therein. (Code Crim. Proc., Art. 425; Penal Code, Art. 10; 2 Bish. Cr. Law, sec. 506; State v. Stanley, 33 Iowa, 526; Perryman v. The State, *30036 Texas, 321; Reed v. The State, 16 Ark., 499; 1 Archb. Cr. Pr. and Pl., 784; 1 Whart. Prec., 114.)
That the averment in the indictment, that the homicide was ■committed with “malice aforethought,” is insufficient to charge murder in the first degree is an objection which has been held untenable by numerous decisions of the courts of this and other States. “Malice aforethought” includes both express and implied malice, and is sufficient to. charge murder in either degree. (Gehrke v. The State, 13 Texas, 568; White v. The State, 16 Texas, 206; Wall v. The State, 18 Texas, 682; Perry v. The State, 44 Texas, 473; Stapp v. The State, 3 Texas Ct. App., 138; Henrie v. The State, 41 Texas, 573; Longley v. The State, 3 Texas Ct. App., 611; Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, Id., 650.) We hold that the indictment in this case is a good one for murder in the first degree, and that the court did not err in overruling the exceptions to it.
Another assignment of error is that the court erred in changing the venue of the case; that, in ordering the change, the case should have been sent to Wharton instead of to Austin county. This prosecution was instituted in Fort Bend county, where the homicide was committed. Defendant made application for a ■change of venue, under Article 578 of the Code of Criminal Procedure, setting forth, 1, that there existed in Fort Bend county so great a prejudice against him that he could not obtain a fair and impartial trial therein; and, 2, that there was in said county a dan.gerous combination against him, instigated by influential persons, by reason of which he could not expect a fair trial. This application was supported by the affidavits of several persons, and was not controverted; and the judge granted the same. But, instead of sending the case for trial to Wharton county, which was the adjoining county to Fort Bend county, and the court house of which is nearest to the court house of Fort Bend ■county, the court ordered it transferred to Austin county. In the order changing the venue the judge sets forth his reasons for sending-the case to Austin instead of to Wharton county, as follows: “The venue of this case is changed to Austin county for the reason that a trial alike fair and impartial to the State -and the defendant cannot be had in Wharton county. The business and personal relations of the people of this and Wharton ■'County are intimate. This case has created quite a sensation in this section, and it has been a matter frequently discussed in Wharton county, as the court well knows, having heard the *301same. The comity of Wharton is sparsely settled; and, considering all the circumstances of the case, the court deems it but just to all the parties to change the same to some other county than Wharton; and Austin county is fixed upon by the court.”
This action of the court, in so far as it sent the case to Austin instead of to Wharton county, was excepted to at the time by the defendant, and is presented in a proper bill of exceptions for the consideration of this court. It is earnestly and ably insisted by counsel for the defendant that the court, in sending the case to Austin county, of its own motion, exceeded its legal discretion and authority.
We deem it unnecessary to enter upon an extended discussion of this question, inasmuch as we think it has been fully elucidated and clearly determined in previous decisions rendered by this court. In Preston v. The State, 4 Texas Court of Appeals, 186, this precise question was presented, and the court said: “After a careful examination of the statute, we are satisfied that the court did not err in declining to remove the cause to Clay county. If it was known to the court that the same objection existed in Clay county as in Montague, it did not require further proof of that fact, but the court would be authorized to change the venue to some county adjoining Montague not subject to any valid objection.” In Brown v. The State, 6 Texas Court of Appeals, 286, the same question was again presented,, and the Preston case was cited and approved to the effect that the presiding judge had the authority, upon his own motion, in granting an application for a change of venue made by the defendant, to order the case to any county in his own or in an adjoining district, if he was satisfied that a trial alike fair and impartial to the accused and the State could not, from any cause, be had in the county where the cause was pending.
This power of the judge is derived from Article 576 of the-Code of Criminal Procedure, which reads as follows: “Whenever, in any case of felony, the district judge presiding shall be satisfied that a trial alike fair and impartial to the accused and to the State cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order-a change of venue to any county in his own or in an adjoining district.” This article was added to the Code by the Act of August 21, 187G, and conferred upon district judges a power not. previously possessed by them. In Cox et al. v. The State, 8 Texas Court of Appeals, 254, it was urged by counsel for the defend*302ants that the article was unconstitutional; but the court in an elaborate opinion maintained the constitutionality of the provision, and again re-affirmed the doctrine announced in the cases of Preston and Brown, before cited. In the Cox case, above cited, the venue of the case was changed, upon the judge’s own motion, from DeWitt to Bexar county, the judge reciting in his order his reasons therefor, as follows: “That the judge is satisfied that there exists in this county influences resulting from the terrorism prevailing among the good people of the county which will prevent a trial alike fair and impartial to the accused and the State, it is ordered,” etc. It was held by this court that the reasons recited were sufficient to justify the action of the court, although the case was not sent to the nearest county, and no reason was assigned why it was not.
We are of the opinion, and so hold, in accordance with the former decisions of this court, that under Article 576 of the Code of Criminal Procedure, which we have quoted, the judge had the authority, of his own motion, to send this case for trial to Austin county. He was clothed with this discretion by the express and unqualified words of the law, and this law was enacted under the express sanction of the Constitution. (Const., Art. 3, sec. 45.) It' is true that this discretion is a judicial, and not a personal one (Walker v. The State, 43 Texas, 360; Dupree v. The State, 3 Texas Ct. App., 613); yet, it being a discretion created and confided by the law, it will not be revised by this court in the absence of any showing that it has been abused to the prejudice of the defendant. Such has been the uniform practice of this court, established by numerous decisions, and from which we see no reason to depart. (Noland v. The State, 3 Texas Ct. App., 598; Johnson v. The State, 4 Texas Ct. App., 268; Labbaite v. The State, 6 Texas Ct. App., 357; Daugherty v. The State, 7 Texas Ct. App., 480; Cox v. The State, 8 Texas. Ct. App., 354; Myers v. The State, 8 Texas Ct. App., 331; Grissom v. The State, 8 Texas Ct. App., 386; Webb v. The State, 9 Texas Ct. App., 490.)
It has been ably argued by counsel that it is dangerous to the liberties and rights of the citizen to confide to its district judges such unrestricted power as is conferred by the broad and unqualified language of Article 576, above quoted, and that it should be limited by the provisions of Article 581, following it. We do not regard Article 581 as being restrictive of the powers conferred by Article 576, and whether or not the power com*303plained of is a dangerous one to be vested in district judges is not a question for this tribunal to determine. We will say, however, that, since the enactment of Article 576, no case has come under the observation of this court in which the discretion conferred had been, in our opinion, abused. And in the case we are now considering we fail to discover any abuse of this discretion, and there is no pretence, or at least no effort is made to make it appear, that the defendant has in any respect been injured in his rights, or prejudiced by the action of the court, in sending the case to Austin county, instead of to Wharton county, for trial.
Defendant’s third assignment of error is that, “the court erred in overruling the application for a continuance, filed January 16, 1883.” We find no bill of exception to this action of the court in the record, and therefore we could not revise the alleged error, even if it was error. Without a bill of exceptions in the record, the refusal of a continuance will not be revised. (Glark’s Cr. Laws, p. 474, note.)
Other assignments of error relate to the charge of the court as delivered to the jury, and to the refusal of the court to give certain charges requested by defendant’s counsel. We have given these assignments a careful consideration, and we find no error in the court’s charge. While it is unusually brief, it is clear and full, and presents the whole law of the case plainly and correctly. It is, in our opinion, an admirable exposition of the law applicable to the facts. Such being the charge, there was no error in refusing the charges requested by defendant’s counsel, as they contained nothing proper to be given which was not already embraced in the general charge of the court.
In passing upon the only remaining assignment of error, that the court erred in refusing to give the defendant a new trial for the reasons set forth in his motion for a new trial, we must say that we think the new trial was properly refused. We have carefully considered the evidence as presented by the statement of facts, and, while it is circumstantial, it is, to our minds, irresistibly convincing of the defendant’s guilt. It possesses that cogency which produces a moral and absolute certainty, to the exclusion of every other reasonable hypothesis, that the defendant, and no other person, committed this most atrocious murder. There is no good reason disclosed by the record for setting aside the judgment of his conviction, and granting him a new trial. He has had a fair trial, so far as we are able to judge from the *304record. He has been zealously and ably defended by experienced counsel, and before this court his case has been argued with an earnestness and eloquence characteristic of the learned counsel who represented him.
Opinion delivered May 2, 1883. [Repobtebs’ Note.—A motion for rehearing being filed and argued, it was disposed of by the following opinion on a subsequent day of the term.]We have found no error in the proceedings, and the judgment of conviction is in all things affirmed.
Affirmed.
Willson, Judge.In so far as this motion again presents the questions discussed and determined by the opinion heretofore delivered in this case, we will say that our confidence in the correctness of the conclusions arrived at and announced in that opinion has not been shaken, and we therefore adhere to those conclusions without consuming further time in their discussion. Counsel for appellant have very ably re-argued those questions, but, while we are impressed with the strength of their reasoning, and the force of their arguments, we think the law has been well settled against their propositions.
Some questions are presented by the motion for re-hearing which were not presented on the former hearing of the case, and which we will now consider.
1. That the indictment does not appear to have ever been returned into court and record made of the fact. This objection is not, we think, supported by the record. We find in the record an entry showing the return into court, and presentment by the grand jury, of the indictment, designated by its file number; which, we think, is in compliance with the law. (Code Crim. Proc., Art. 415.)
2. It does not appear that defendant was ever arraigned on and pleaded to the indictment; and 3. It does not appear that defendant ever pleaded to the indictment in the county where the prosecution was instituted. These two obj ections are contradicted by the record. We find in the record the following entry, made upon granting defendant’s motion for a change of venue, to wit:
“ On this day came on to be heard the motion of the defendant, F. W. Bohannon, for a change of venue, the State appearing by the district attorney. Whereupon the defendant, F- W„ *305Bohannon, was arraigned, and entered his plea of not guilty, and the court, after considering said motion,” etc.
4. It appears that evidence was admitted on the trial prejudicial to the defendant, that is wholly inadmissible in any case under any possible state of facts.- This objection refers to the admission in evidence of the transcript of the proceedings had in the case in the District Court of Fort Bend county, prior to the change of venue to Austin county, and including the order of the court making such change. It does not appear that any objection to the admission of this evidence was interposed by defendant at the time it was offered, nor was any motion made to exclude it; nor is there any bill of exception in the record in any way relating to it. If evidence is not objected to in the court below, it cannot be objected to in this court, and, if objected to in the court below, such objection cannot be considered by this court unless presented by proper bill of exceptions.
5. It does not appear that defendant was asked the statutory question, why sentence should not be passed on him. We find in the sentence this recital: “The motion of defendant in this cause for new trial having been overruled, and said defendant being present in open court, and being asked by the court if he had any legal reason to assign why the sentence of the law should not be pronounced against him in accordance with the verdict of the jury and the judgment of the court heretofore had and entered of record in this cause, gave none.” We certainly think that this recital shows a compliance on the part of the court with Article 798 of the Code of Criminal Procedure. But, if the record was entirely silent upon this subject, .we would presume that the court below had performed its duty, and had asked of the defendant the statutory question. We have discussed this question in Johnson v. The State, decided to-day, and in that case held that it was not necessary that the record should show that, before pronouncing sentence, the defendant had been asked if he had anything to say why the sentence should not be pronounced against him.
Notwithstanding the earnest and able arguments advanced in behalf of appellant by his distinguished counsel, we can perceive no error fot which the judgment should be set aside. That the defendant may, perchance, be innocent of the crime of which he has been convicted, is within the bounds of possibility; but, so far as we are able to judge from the record, he had a fair and impartial trial, and, upon sufficient evidence, has been found *306guilty by due course of law; and, such being our view of the case, it is our duty to overrule the motion for a rehearing, which is accordingly done.
Motion overruled.
Opinion delivered May 30, 1883.