This appeal is from a judgment of conviction for murder of the first degree, life imprisonment in the penitentiary being the punishment assessed.
Three preliminary questions are raised, which we will dispose of before proceeding to a discussion of the merits of the case. 1. A motion in arrest of judgment attacked the sufficiency of the indictment, because it was not signed officially by the foreman of the grand jury, as provided by Code Grim. Proc., art. 420, subdivis. 9. It is expressly declared by a subsequent provision of the Code of Criminal Procedure, that exception to the form of an indictment for the want of the signature of the foreman of the grand jury is not maintainable. (Code Crim. Proc., art. 529, subdivis. 2.) Failure of the foreman to sign it does not affect its validity. (Pinson v. The State, 23 Texas, 579; State v. Powell, 24 Texas, 153; Hannah v. The State, 1 Texas Ct. App., 578; Campbell v. The State, 8 Texas Ct. App., 84; Jones v. The State, 10 Texas Ct. App., 552; Willson’s *566Grim. Forms, p. 17.) Moreover, suoh exception, if maintainable, would be one only as to form and not as to substance, and could not therefore be made available on a motion in arrest of judgment. (Oode Grim. Proc., art. 787; Clark’s Grim. L., p. 579 and note; Jones v. The State, 10 Texas Ct. App., 552, and Johnson v. The State, 14 Texas Ct. App., 306.)
2. The overruling of defendant’s application for continuance. Considered in the light of the testimony adduced on the trial, the facts desired to be proven by the absent witness Wilke are shown to be immaterial to the issue to be tried; and, besides, these facts were amply proven by other witnesses, and there was no contest concerning them. We cannot see that the court abused its discretion in overruling the motion, to the detriment of defendant. (Code Grim. Proc., art. 560, subdivis. 3 and 6; Woodward v. The State, 9 Texas Ct. App., 412; Grissom v. The State, 8 Texas Ct. App., 386.)
3. The organization of the jury. After the special venire was exhausted, the court, over objections by defendant, ordered the names of the jurors summoned on the regular panel for the week, twenty-four in number, to be placed in the box, to be drawn therefrom, and a list to be made by the clerk from which the two remaining jurors necessary to fill the panel should be selected. Appellant objected and requested the court to issue a special venire to the body of the county, without reference to the jurors summoned for the week. This request was refused, and the remaining jurors were selected as directed from the regular jurors in attendance for the week. Appellant exhausted his peremptory challenges in obtaining the eleventh panel. We are of opinion the action of the court in this respect was just what the statute expressly requires, viz.: that a special venire shall be selected from the names of those persons selected by the jury commissioners to do jury service for the term at which such venire is required. (Oode Grim. Proc., art. 610.) It is only in cases where no jurors have been selected by the jury commissioners for the term, or where there shall not be a sufficient number of them to make the number required, that the court is authorized to send to the body of the county for a special venire or for talesmen to complete the venire or the panel. (Oode Grim. Proc., arts. 611, 612.) And it is only after the special venire and the jury box are exhausted that talesmen from the county can be ordered. (Roberts v. The State, 5 Texas Ct. App., 141.) No objection is urged that the jury as selected was not a fair and impartial one. (Woodard v. The State, 9 Texas Ct. App., 412; Loggins v. The State, 12 Texas Ct. App., 65.)
*567With regard to its merits the whole case may be briefly summed up for appellant thus: If appellant killed deceased, it is claimed that then he was justifiable in doing so, because, at the time of the homicide, the deceased was in the act of placing, or had in fact already placed, an obstruction upon the track of the Austin & Northwestern Bailroad, with intent to wreck the train and thereby endanger the lives of persons upon said train. Or, if not justifiable, then that appellant’s offense in killing deceased could not amount in law to a higher grade of crime than manslaughter. We will premise the discussion of these theories by stating that, under our statute, it is made a felony to wilfully place an obstruction endangering human life upon a railroad track, and if human life is lost bv such unlawful act the crime becomes murder. (Penal Code, art. 678.)
Homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, whether committed by the party about to be injured or by some person in his behalf; but the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. (Penal Code, art. 570, and subdivis. 2.) In such circumstances the killing is justifiable on the principle of necessary self-defense. The whole doctrine of self-defense rests upon the comprehensive principle of reasonable necessity, and apparent reasonable necessity is the whole law of defense. It is the right to do whatever apparently is reasonably necessary to be done in warding off or avoiding serious injury under the circumstances of the case. (Aldrich v. Wright, 53 N. H., 398; S. C., 2 Green’s Grim. B., 307.) It is a defensive and not an offensive act. (3 Texas Ct. App., 581; 6 Texas Ct. App., 191; 7 Texas Ct. App., 269, 486; 8 Texas Ct. App., 129.) It is founded on the law of nature, and is not, nor can be, superseded by any law of society. “ Where murder or any other known felony is attempted upon the person of another, the party assaulted may repel force by force, and his servant attendant upon him, or any other person present, may interpose for preventing the mischief; and if death ensue, the party so interfering will be justified.” (Whart. on Horn. (2d ed.), § 532.) This perfect right of defense which attaches to the person extends also to the protection of his habitation or “castle” (1 Bish. Or. L. (7th ed.), § 860; Richardson v. The State, 7 Texas Ct. App., 486), and under certain restrictions even to the defense of corporeal personal property. In this latter case the restrictions are that “ all other means must be resorted to for the prevention of the injury, and the killing *568must take place while the person killed is in the very act of making such unlawful and violent attack; and any person interfering in such case in behalf of the party about to be injured is not justifiable in killing the aggressor unless the life or person of the injured party is in peril by reason of such attack upon his property.” (Penal Code, art. 572.) “Every other effort in his power must have been made by the possessor (and a, fortiori by the person acting in his behalf) to repel the aggression before he will be justified in killing.” (Penal Code, art. 575, subdivis. 4.)
Where a felony is threatened the party may repel it, whether leveled at himself or others; “but the force of defense must be proportioned to the force of attack. It is but reasonable that the kind and amount of defense should be measurably proportioned to the amount and kind of danger.” “A Iona fide belief by the defendant that a felony is in process of commission which can only be arrested by the death of the supposed felon makes the killing excusable homicide.” (Whart. on Horn., § 533; Desty’s Amer. Grim. Law, §§ 125d, 12Qd.)
But “to justify the defensive destruction of human life the danger must be not problematical and remote, but evident and immediate.” (Aldrich v. Wright, supra.) “ The attempt must not be merely suspected but (reasonably) apparent; the danger must be (apparently) imminent, and the opposing force or resistance must be necessary to avert the danger or defeat the attempt.” (3 Green 1. Ev. (13th ed.)', § 115; Desty’s Amer. Grim. L., § 12Qd.) “The law holds the life of man in the highest regard. And only in extreme instances of wrong-doing, and impelled by an extreme necessity, can another take it innocently away. Therefore, when, in general, a person is in the commission of any mischief, whether civil or criminal, no other person opposing him, however lawfully, is entitled to proceed in such opposition to the taking of his life. But to this rule there are exceptions, of which the most prominent one relates to felony. Anciently the punishment of felony was death, from which reason or from some other not appearing, it became established doctrine both in England and our states that one may oppose another who is attempting to perpetrate any felony, to the ex-tinguishment, if need be, of the felon’s existenee.” (1 Bish. Grim. L., § 849.)
It seems, however, that the right to take life does not extend to nor authorize the killing of persons attempting secret felonies not accompanied with force. (Whart. on Horn., § 539.) In Pond’s case, 8 Mich., 150, the doctrine is thus stated, viz.: “It is held to be *569the duty of every man who sees a felony attempted by violence to prevent it if possible, and in the performance of this duty, which is an active one, there is a legal right to use all legal means to make the resistance effectual. Where a felonious act is not of a violent or forcible character, as in picking pockets and crimes partaking of fraud rather than force, there is no necessity and therefore no justification for homicide, unless possibly in some exceptional cases. The rule extends only to cases of felony, and in these it is lawful to resist force by force. . . . Life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here precisely as in all other cases.” A killing is not excusable if the felony resisted, though most atrocious, could be prevented by less violent action, for, as above stated, the right of resistance depends upon the necessity of the case, and the danger to be averted must be apparently immediate, pressing, imminent and unavoidable. The necessities of self-defense are limited to the immediate resistance of aggression, and the apprehension must have been excited by an actual assault. (Desty’s Grim. L., § 125d.) Mr. Bishop says: “Though it is lawful for one to oppose another who is committing a felony, even to the taking of his life, yet, if there is no obstacle to his arrest, the shooting of him in the felonious act, instead of having him arrested, is a felonious homicide.” (1 Bish. Grim. L., § 843; Whart. on Horn., § 536; Desty’s Amer. Grim. L., §§ 125d, 126<£)
One in defense of his own or another’s property must not kill the aggressor until all other means have been resorted to; he must find his redress in the courts. “ If the wrongful act is proceeding to a felony on the property, he may then kill the doer to prevent the felony, if there is no other way; otherwise this extreme measure is not lawful. And the defense may be such and such only as necessity requires; of course within the limit which forbids the taking of life.” (1 Bish. Cr. L., § 875.) It is provided by our statute that “ a peace-officer, or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an offense against the public peace.” (Code Grim. Proc., art. 226; Staples v. The State, 14 Texas Ct. App., 136.)
These are the principles of law applicable to the facts of this case. Deducible from these principles are the following rules relative to a a homicide claimed to be justifiable in defense of life or property, viz. s
1. To justify homicide in defense of one’s own life or the life of *570another or others, it must be in necessary resistance to aggression apparently violent, immediate and imminent, towards the person about to be injured.
2. To justify homicide to prevent the perpetration of any other felony, the danger or felony intended must not be problematical or remote, but evident and immediate.
3. It is in no case, except as to habitation or castle, justifiable to kill in defense of one’s own or the property of another, until every other means have been resorted to to prevent the injury or violence attempted.
4. In no case of felony or attempted felony is it lawful to take life where the party may be arrested and the felony thereby prevented.
5. Any person may arrest, with or without warrant, a party committing or who has committed a felony in his presence or within his view, o
How to apply these principles to the facts of the case. Concede that the deceased placed the obstruction upon the railroad track, that of itself, as we have seen, was a felony. Concede that he placed it there with the intent and for the purpose of endangering and causing the destruction of human life,— in other words, to murder the innocent and unsuspecting officials and passengers who might be upon the next train. Still the fact that they would be killed or their lives endangered was problematical and remote so long as the train was not immediately approaching with apparent and unavoidable proximity to the obstruction. Suppose the object was to destroy only the property of the railroad company by throwing a freight train from the track and breaking up its cars,— that result was equally as remote and problematical. In neither of these cases, as we have seen, could defendant justify his act in taking deceased’s life, either for the felony already committed in placing the obstruction upon the track, or the felony of murder or destruction of property, it was supposed or presumed he intended to commit.
Again, deceased was unarmed,— defendant armed with a double-barreled shot-gun. He had been sent there purposely to guard the railroad track, to arrest and prevent parties whom he might see placing obstructions on the track, and he assumed the duty under promise of a reward from the management of the road of §200, to be paid for any such arrest, or “ to be paid whether the guilty parties be arrested and convicted, or be shot and killed while in the act of attempting to wreck a train.”
Defendant went, we presume, to arrest or kill such parties. He *571is presumed to have known that the law authorized and made it his duty to arrest the parties. He had the same authority as any peace officer would have had. He had the time, he had the means, he had the authority not only of his employers but of the law; it was his duty to arrest. The portions of the charge of the learned trial judge to the jury which are earnestly complained of by counsel for appellant are as follows:
“12. The act of wilfully placing an obstruction upon the track of a railway, endangering human life thereby, is a felony; and under the law any person may, without warrant, arrest the offender when the offense is committed within view of the person making such arrest; but under the law neither officer nor other person can lawfully take the life of such offender, whose arrest may be so made or sought to be made, unless the officer or other person making the arrest has just ground to fear his own life will be taken, or that he will suffer great bodily harm; in which cases life may be taken.
“13. If, therefore, the jury find from the testimony that the deceased placed such obstacle upon the track of the Austin & northwestern Bailway, endangering human life, in view of defendant, and that defendant sought to arrest deceased, and that deceased resisted, or so acted as to give the defendant just ground to fear his own life or great bodily harm, and that in such circumstances the defendant shot and killed deceased, then such killing is by the law excused, and the jury should acquit.
“ If, however, in such attempt by defendant to arrest deceased, and if there be in evidence nothing showing, or tending to show, that the deceased so acted as to give defendant just or apparent ground of fear of his life, or of great bodily barm, and if the jury find from the testimony, beyond a reasonable doubt, that in such circumstances the defendant shot and killed deceased, then such killing would be unlawful, even if the killing was made in attempting the arrest of the deceased; and if the killing was intentionally and deliberately done, the act would be murder.
“The mere placing of the stone upon the railway track, if done, would not excuse or justify the killing, if proved.”
To this charge appellant at the time specially excepted.
It is claimed that these instructions are erroneous because there was no evidence showing or tending to show that appellant killed deceased while resisting his attempted arrest. He has no right to complain. It was but charity, if not a right to 'which he was entitled, to give him the benefit of a charge upon the only hypothesis upon which the law would justify his taking the life of the de*572ceased. The instructions are in entire harmony with the rules of law as above announced.
We have given this case our most earnest and thorough consideration. There is no manslaughter involved in it. It is solely a case of murder or justifiable homicide. These issues were fairly submitted to the jury. They have found that it was murder of the first degree,— a murder the express malice of which is evidenced by a lying in wait. The learned judge who heard the testimony, and was in better position to pass upon its weight and sufficiency than we are, overruled defendant’s motion for a new trial. As presented in this record, we think it amply supports the verdict and judgment, and being unable to see that any error was committed at the trial, the judgment is affirmed.
Affirmed.
[Opinion delivered December 9, 1885.]