This is a conviction for murder of the first degree, with the death penalty. There is no brief for appellant. Eight errors are assigned, however, as grounds for reversal of the judgment. These we will consider in the order presented.
I. “ The court erred in permitting Irvin Warren to state to the jury that he had been told by his wife and daughter that the defendant had told them it would be the last time that witness would go with Henry (deceased) to arrest Peter Washington.”
There are two answers to this supposed error:
1st. Warren’s wife and daughter had sworn to the fact that defendant stated to them that it would be the last time that Irvin Warren would go with Henry to arrest Peter Washington; and this was, under the circumstances of this case, very material and important testimony for the State. And conceding, for the argument, that the State did not have the right to prove that the wife and daughter of the witness informed him of this matter, we fail to perceive in what possible manner, under the facts of this case, appellant could have been injured.
*312d. The witness Warren had on several occasions, and once under oath, denied any knowledge as to who the murderer was. Those contradictions he was asked by the district attorney to explain, and as a part of his explanation he referred to what his wife and daughter had told him relating to the remarks of appellant. For this purpose clearly this matter was pertinent and relevant. If, however, there had been any danger of the jury using these facts for any other purpose than as explanatory matter, a charge controlling the juiy with reference thereto should have been requested. For, in the attitude this question is presented to us, we do not perceive how the jury could have misunderstood the purpose of this evidence; and while it might have been proper for the court to have controlled this evidence by charge, no injury to appellant appears from a failure to do so.
II. “ The court erred in not allowing the defendant to read to the jury the testimony of the witness Irvin Warren before the jury of inquest.”
As before observed, this witness Warren had frequently denied all knowledge as to who the guilty party was. On the trial, however, he swore that he saw the flash of the gun, which was but a few steps from the road, and that the defendant was, in fact, the person who shot and killed Henry, the deceased. Hpon cross-examination he admitted fully that he had on former occasions, and before the jury of inquest, stated and swore that he did not know w7ho had shot Hr. Henry. This being the case, the court did not err in rejecting his evidence taken before the inquest; the rule being that where a witness denies or fails to remember making the statements, evidence that he did make them is admissible, of course under the proper predicates. When the contradictions are confessed, evidently there is no use or purpose for the impeaching testimony; for this work he performs upon himself. It was claimed by counsel for defendant that the witness Warren had not confessed that he had stated that he did not see the flash of the gun. But so much of his testimony before the inquest as showed that he stated that he saw no blaze from the gun was not objected to, and in fact was read to the jury. We have examined carefully the predicate laid by defendant, and have compared it with the testimony of this witness, but fail to find a fact or circumstance excluded, embraced within the predicate, after giving to the predicate a very broad and liberal construction. We find no error in reference to this matter.
TIT. With regard to this assignment it appears that the rule had been invoked by defendant, and the witnesses sworn and placed *32under the rule; that Adam Caraway was introduced by the State, to which defendant objected because he had been in the court room, heard all the testimony, and had never been under the rule.
One theory of the defense was that Irvin Warren murdered William Henry. This could not have been anticipated by the State. Caraway’s testimony was for the purpose of meeting this theory, and by reference to the statement of facts it will be seen that no other witness has testified to the facts sworn to by this witness. Under these circumstances it does not appear to us that the learned judge abused the discretion vested in him touching this matter; and unless it so appears to this court, the action of the court below in permitting a witness to be used who had not been under the rule, or who has violated the rule, will not be ground for reversal.
But defendant objected to the testimony of this witness upon the ground of immateriality. In answer to' this objection, the record shows some evidence tending to criminate the witness Irvin Warren, and, as before stated, the learned judge informs us that this was one theory of the defense. Under this state of case, any legitimate evidence tending to refute this theory was material. The relation existing between the parties has, we believe, always been held admissible. Were the parties on friendly and intimate terms, or were they enemies ? — this is matter of inquiry in a great many murder cases. And let us suppose that defendant had introduced Caraway, and proposed to prove by him that just such relations existed between him and William Henry as are sworn to have existed between Warren and Henry, viz.: — “That their relations were very kind, and that said Warren was a favorite with Henry, and that Henry would let him have anything he, said Warren, wanted, and that said Warren ran the engine for Henry,” — would it be insisted that this would not be material testimony? If not, the theory of the defense being that Warren killed Henry, the State could adduce any fact or circumstance to refute this theory which would be admissible for defendant Walker to refute the theory of his guilt. We find no error in this matter.
4th arid 5th errors: “The court erred in its charge to the jury; and the charge of the court is upon the weight of evidence.” Ho error of any character whatever is pointed out in the bill of' exceptions, motion for new trial, or the assignment of errors. We have, nevertheless, thoroughly examined the charge, and believe it to be an admirable application of the law to the case, and to the whole case. If it is obnoxious to the objection of being upon the weight of the evidence, we have not been able to discover it.
*336th errors When the motion for new trial was called for disposition, counsel for defendant moved the court to postpone the motion until the attendance of two witnesses could be had, who had been subpoenaed. The learned judge upon this subject informs us “ that Gray, one of these witnesses, had been excused by counsel for defendant, and that both of the witnesses had been in attendance on the court in obedience to the subpoena, and had interviews with counsel for the defendant, and that the counsel for the defendant failed to take their affidavits.” Under this state of case the motion to postpone the motion was overruled. In this, we think, there was-no error.
But suppose there was error in forcing the parties to take up the motion for new trial in the absence of these witnesses, was the matter relative to which the evidence was desired of such a character as to warrant the court in granting a new trial? Let us look into this matter. After ten of the jurors (all but Staiti and McMillan) had agreed to the verdict rendered, Bray said he would like to know the relative size of defendant and Peter Washington; when the juror Adkins said to Bray he knew him, and he was a small man. It does not appear that Staiti or McMillan heard this, nor, if they did, that it influenced them in finding a verdict against defendant. It is admitted that Bray asked the question after ten of the jurors had agreed to the verdict, he and Adkins being two of the ten. Bor is it insisted that this conversation was heard by any other juror. It certainly did not influence Bray, for he had already made up his verdict. Bor can we infer, first, that Staiti and McMillan heard this conversation, and then infer that they were influenced. It appears to us that defendant was seeking a postponement for the wrong witnesses. Being informed of the conversation between Bray and Adkins, he should have then inquired of Staiti or McMillan, in order to learn, first, if they or either of them heard these remarks, and, second, if they or either of them was influenced thereby. We have been treating this matter upon the hypothesis that such can be made a ground for new trial; which is very doubtful. We find no error in the action of the court in regard to this matter.
7th and 8th errors: Because the court erred in overruling motion for new trial; and because the verdict of the jury is contrary to the evidence. The grounds for new trial are the matters embraced in the assignment of errors above considered, and held by us insufficient to entitle the appellant to a new trial.
Is the verdict supported by the evidence? This is the only ques*34tian remaining for discussion; we having carefully considered all questions presented in the assignment of errors; and the errors assigned embrace all questions presented by the record about which an issue could be made. The remaining question, therefore, is: Does the evidence support the verdict? Looking to the statement of facts, and giving to each and all the evidence a close analysis, we are convinced and satisfied that Antony Walker did, as found by the jury, with express malice kill and murder William Henry. This belief of his guilt rests upon the fact that the witnesses, who were of his own race and color, swore the truth; of which this court is not the judge. And if the appellant in fact be innocent, and suffers the high penalty of the law, to wit, death, he will be thewictim of the perjury of his own people; for the record shows that the learned judge presiding awarded to him a trial eminently fair and impartial. - We have not confined our investigation to errors assigned by counsel for defendant only, but have searched the record carefully in order to discover if there be any errors committed injurious to the rights of the appellant; but we have found none, and, therefore, it becomes our duty to affirm the judgment. The judgment is affirmed.
Affirmed.
[Opinion delivered October 15, 1884.]