Appellant and one Tom Kennedy and one Scott Hendricks were jointly indicted for the murder of one Edmond Hill in Yan Zandt county on the 17th day of August, A. D. 1883. They were tried separately. Appellant was convicted of murder of the first degree, with a life penalty in the penitentiary.
Twenty-one bills of exception, saved on the trial to various rulings made by the court, appear in the transcript of the record. 1. The first, second and third bills show a discrepancy between the facts stated in the body of the bill and the explanation appended by the judge to the bill with regard to the time when the special veniremen mentioned had been excused by the court. In his explanation the learned judge says he excused them, when their names were regularly called on the list, on account of sickness as shown by physicians’ certificates. We take it the explanation states the facts. Ho excuse for a special venireman can be heard and determined, ordinarily, until after the venire has been called, placed in the jury box, and sworn to answer questions touching their qualifications as jurors. (Code Grim. Proc., arts. 618, 619, 620.) Any excuse before that time granted by the court is without authority of law. Ordinarily no one who is not present to present his excuse for himself can be excused, save by consent of both parties. (Code Grim. Proc., art. 621.) But if upon a call of the list it be made to appear satisfactorily to the court that a venireman whose name is called is absent on account of sickness, or other unavoidable cause over which he has no control, the court may undoubtedly excuse his attendance. (Thuston v. The State, 18 Texas Ct. App., 26.) But when the court exercises this authority without consent of parties, or over objection by a defendant, it should only do so upon the most satisfactory evidence of unavoidable necessity, and even in such cases a defendant might be entitled to the issuance of an attachment in order to verify or disprove the truth of the ground of excuse. In this instance, though objection was made to the action of the court, it does not appear that defendant applied for an attachment to have the jurors brought forthwith before the court (Code Grim. Proc., art. 618), and we will not revise the action.
2. Bills of exceptions 4, 6 and 9 present objections to the rulings of the court in holding jurors competent and qualified who were *612challenged for cause by defendant, and upon whom defendant was compelled to exercise peremptory challenges on account of such rulings, he having exhausted all of his peremptory challenges before the jury was finally completed. One of the jurors, Ellis, stated on his voir dire examination that he had heard the previous trials of appellant’s co-defendants, Kennedy and Hendricks, and that he had made up and formed an opinion as to their cases, and thought the result reached in those cases (convictions) was all right, but that he had no opinion of the guilt or innocence of defendant in this case, and that he could give defendant a fair and impartial trial in this case. (Acts 19th Legislature, p. 91.) The mere fact that a juror has heard the evidence on a prior trial of the same case will not disqualify him as á juror. (Parchman v. The State, 2 Texas Ct. App., 228; Wade v. The State, 12 Texas Ct. App., 358.) There must be established in his mind a conclusion of the guilt or innocence of the accused, and this conclusion must be such as will influence him in his verdict. The other jurors stated that they had formed no opinion and could give the defendant a fair and impartial trial. One of them, Franks, stated that he had an impression in the case by hearing the testimony in the Kennedy and EEendricks cases. It was held in the Rothschild case, 7 Texas Ct. App., 520, that “a mere impression, though derived from the evidence (heard on a former trial), does not disqualify a juror unless it would influence his finding.”
3. Bdl of exception Ho. 5 presents this question: The special venireman as shown on the list served on defendant was D. W. Hardigree, but when the name was called one W. D. Hardigree, the father of D. W., who lived with him, appeared and answered, and it was shown that W. D. had been summoned, and not D. W. Defendant objected to W. D., and asked for an attachment for D. W. The court stood W. D. aside, and refused the attachment for D. W. This ruling was correct. Where á juror is misnamed in the copy of the special venire served on the defendant, it is the proper practice to stand him aside. (Swofford v. The State, 3 Texas Ct. App., 77; 72 Ala., 164.) It was hot error to refuse an attachment for D. W. Hardigree, because D. W. had not been summoned, and an attachment is only authorized “for any person summoned who is not present, to have him brought forthwith before the court.” (Code Crim. Proc., art. 618.)
4. Bill of exception Ho. 7 shows that the juror Landrum stated that where the law gave a juror the option to inflict death or imprisonment for life, he would not, under any circumstances, inflict *613the death penalty. On objection by the State for cause, the challenge was sustained. Persons with conscientious scruples against the infliction of the death penalty are incompetent jurors, notwithstanding the statute permits the jury to fix the punishment at imprisonment for life. (59 Miss., 19 and 484; 6 Parker’s C. R, 15.)
5. The eighth bill shows that the juror Pranks had, within the three preceding months, served as a juror for four days in the county court of Van Zandt county. Defendant challenged him for this cause, and the court held him competent. There was no error in this. One of the causes of disqualification of a juror named in the civil statutes is, “ he must not have served as a juror for six days during the preceding six months in the district court, or during the preceding three months in the county court.” (R. S., art. 3010, sub-div. 5.) The juror had only served four days, and was, consequently, not disqualified.
6. The tenth bill shows that, after having exhausted his twenty peremptory challenges, defendant proposed to challenge the juror Luton peremptorily, which the court refused to allow, because he had already exhausted all his peremptory challenges. This ruling was correct. If after exhausting his peremptory challenges he had challenged the juror for cause, and the court had erroneously overruled said challenge and forced the objectionable juror upon him, the error in the ruling would have been cause for reversal. (Loggins v. The State, 12 Texas Ct. App., 65; Heskew v. The State, 17 Texas Ct. App., 161; Hollis v. The State, 8 Texas Ct. App., 620.)
7. The eleventh exception was taken to the witness Runnells being permitted to state, over objection, that he heard just after the shooting the voice of Scott Hendricks, a co-defendant, exclaim: “ Oh yes, boys, that got him ! ” Being made at the time and place of the shooting, the exclamation was admissible as res gestee. “What is said and done by participants under the immediate spur of a transaction becomes part of the transaction, because it is then the transaction that speaks. . . . What the participators in the transaction instinctively spoke or acted, did or said, is not hearsay ; it is part of the transaction itself.” (Whart/s Grim. L. (8th ed.), § 262.)
8. The witness Green, as shown by the twelfth bill, after having testified that one of the tracks seen by him at the place of the killing was the track of a nice dress boot or shoe, etc., was asked if he afterwards saw a similar boot or shoe which he took to be the one that made the tracks spoken of. Witness was permitted to state, over objection, that on the day the examining court with regard to *614the killing was held by a justice of the peace, he saw Scott Hendricks, one of the co-defendants, wearing a boot just like the one which should have made the track spoken of. This evidence was admissible as a circumstance to be considered as throwing some light upon the transaction, the evidence of which, besides the confessions hereafter to be noticed, was wholly circumstantial.
9. The thirteenth bill was to the State’s being permitted to prove the state of feeling between the co-defendants, Kennedy and Hendricks, and the deceased Edmond Hill, and that the feeling was bad and the parties unfriendly. If not conclusively shown before this testimony was introduced, a conspiracy between these parties and defendant to kill the deceased was afterwards fully established, and the evidence was admissible to show motive.
10. Matter complained of in the fourteenth and fifteenth bills was withdrawn from the jury by the court, and they were expressly instructed not to consider it in determining their verdict.
11. A. constable who had executed the process in cases pending in a justice’s court can certainly testify that he knew such cases were or have been pending, without its being necessary to produce the record of the justice to prove the fact. We cannot, therefore, see that any error was committed as complained of in the sixteenth bill of exceptions. But if the justice’s record was the best evidence of the facts proposed to be proven, still in this case the ruling of the court would be error without prejudice, because the matters relating to the prosecutions pending before the justice were proven by other legitimate testimony in the case, and, such being the case, the evidence of the constable as to the facts became unimportant.
12. Bills of exceptions Eos. 17 and 18 relate to confessions made by defendant. It is contended that the confessions were inadmissible because induced in the first instance by fear, and in the second by a promise and the hope that defendant would be allowed to turn State’s evidence and thereby secure immunity from punishment. When the question was raised as to the admissibility of the confession, the court very considerately and properly had the jury to retire from the court room whilst the circumstances connected with the confessions were being inquired into, and these bills of exception show, with the explanations annexed by the judge, all the facts pertaining to the mode, manner and circumstances under which they were ascertained to have been made, and upon which the court admitted them as evidence. In brief, these antecedent facts are, substantially, that appellant had been arrested for this crime and placed in the jail of Smith county. One Baines, a constable of Yan Zandt *615county, was sent by the sheriff of this latter county to bring the prisoner from Smith county to Yan Zandt for trial. There had been considerable excitement amongst the negroes about the killing of Hill; a reward had been offered for the murderers; some threats had probably been made of mobbing them, and these facts had been communicated to appellant. When Baines proposed to take him from the jail in Smith county, appellant expressed fears for his safety, which Baines quieted by promising him every protection. In taking the prisoner from the jail at Tyler to Canton, Baines and his prisoner had to pass by the place where the killing occurred, and when they reached the spot defendant made a full confession to Baines.' Baines did not warn him of the consequences of such a confession, or that it might be used as evidence against him; but he told defendant, after the latter had made his confession, that “if he, defendant, would tell Thompson, the sheriff of Yan Zandt, about it, and go before the grand jury, he might come clear, or may be he would not be prosecuted.” When they reached the Yan Zandt jail, Baines informed Thompson that defendant wanted to talk with him. Thompson and one Tumlinson went to the jail, had defendant brought out into the guard room, and the defendant told Thompson that he wanted to talk to him about the killing of Hill. Thompson told him that he, defendant, was charged with the killing, and that it was his duty as an officer to notify him that anything he said might be used against him on the trial. He and Tumlinson both testified that he, Thompson, warned defendant three times of the consequences of his statements, before defendant made his confessions. Thompson made no promises of any kind to defendant,- before or after his confession.
These were the antecedent facts and circumstances proven before the court with regard to said confessions in the absence of the jury. Upon these facts the court held the confessions admissible, and, upon the return of the jury into the box, Thompson and Tumlinson were both permitted, over objections by defendant, to testify as to the confessions made by defendant to Thompson. Defendant’s objections were that the confession was inadmissible because, at the time so made, defendant was laboring under the hope that he would be permitted to go before the grand jury, turn State’s evidence against his co-defendants, and thereby gain immunity for himself from punishment for the crime.
A confession, to be admissible where the party is in custody or arrest when it is made, must be “ freely made, without compulsion or persuasion,” and voluntarily made after he has first been cau*616tioned that it may be used against him. (Code Crim. Proc., arts. 749, 750.)
If any promise was made or hope given defendant that he would be allowed to turn State’s evidence, it was made by the constable, Eaines, after defendant had told him all about the killing and his participation in it. This confession to Eaines was not introduced in evidence. Now, can Eaines’s statement made to defendant (which we quote from the explanation of the judge), that “ if he, defendant, would tell Thompson, the sheriff of Van Zandt, about it, and go before the grand jury, he might come clear, or may be he would not be prosecuted,” be called a promise? We think not. It was a mere suggestion or opinion of Eaines. It was not even, properly speaking, advice given by Eaines to defendant as to what he should do; it was a mere suggestion as to what he might do, with an opinion as to what might be the result of such action. But, suppose that it was a promise, it is evident that the promise was not, and was not intended to be, a positive one. What then ? Mr. Wharton furnishes us with the rule. He says: “ and it has been generally held that any advice to a prisoner by a person in authority telling him it would be better for him if he confesses vitiates a confession induced by it. Lately, however, this has been greatly qualified, and it is now held that there must be a positive promise, made or sanctioned by a person in authority, to justify the exclusion of the confession.” (Whart., Crim. Evid. (8th ed.), § 651.) Numerous authorities are cited by the author supporting this doctrine. “ In conclusion” of his discussion of the subject, the same author says: “ We may hold that a confession is only to be excluded on the ground of undue influence where it is elicited by temporal inducement, e. g., by threat, promise or hope of favor held out to the party in respect of his escape from the charge against him by a person in authority under circumstances likely to lead to a false statement; or where there is reason to presume that such person appeared to the party to sanction such a threat or promise. If the influence applied was such as to make the defendant believe his condition would be bettered by making a confession, true or false, this excludes; but, if not, the confession is admissible.” (Id., § 673.)
Eaines neither made him a promise nor compelled or persuaded defendant to adopt or follow his suggestion. For aught that appears, then, his sending for Sheriff Thompson was a voluntary act upon defendant’s part, and the rule then applies as announced in Lopez v. The State, 12 Texas Ct. App., 27: “ If, however, he should freely, and without compulsion or persuasion, send for the prosecut*617ing officer and propose to confess, and the officer should first caution him that it might be used against him, the confession would be admissible, though he might have made it in the hope of immunity. Fear of legal punishment would not of itself be such compulsion as would deprive him of his freedom of action in the premises, and especially so if be was first cautioned that his confession might so be used. For would an agreement entered into by the parties after a confession so made, to the effect that if defendant would turn State’s evidence and testify to the facts confessed he would be released and relieved from prosecution and punishment, operate to destroy the legality and admissibility of such a confession, should he afterward repudiate the agreement and refuse to testify. For such agreement would only be subordinate to the confession, and would form no part of it.” (See, also, Womack v. The State, 16 Texas Ct. App., 178.) We are of opinion the confession to Thompson was not obnoxious to the objections we have discussed, and that a sufficient predicate having been laid for its introduction, the court did not err in admitting it.
13. The nineteenth bill of exceptions was saved to a refusal of the court to permit the grand juror Boggess to testify to statements made in the grand jury room by defendant with regard to his inducements for making confessions to Baines and Thompson. The witness asked the court if, under his oath as a grand juryman, he could divulge what had transpired in that body; and the court refused to compel him to testify. Evidence of what transpires in the grand jury room “is only admissible when, in the judgment of the court, it becomes material to the administration of justice that it should be allowed.” (Clauton v. The State, 13 Texas Ct. App., 139; 64 Maine, 267.) In view of the rule and of all the facts connected with the confession, we cannot say that the court erred in the ruling complained of.
14. The twenty-first bill of exceptions is that the court permitted one Spinks, who was deputy district clerk, to swear the last six members of the jury. The objection to Spinks was that he was a practicing attorney-at-law, and bad causes then and there pending for trial on the docket of the district court. We know of no law inhibiting an attorney-at-law from acting as deputy clerk. It is not shown that Spinks was interested as an attorney or otherwise in the case on trial. The regular clerk was sick, and Spinks was his deputy. There was no error in permitting him to swear the jury in the presence and under the direction of the court.
15. The twentieth bill of exceptions was saved to the overruling of defendant’s motion for a new trial. This motion for new trial em*618braces twenty-two grounds, most of them relating to the matters saved by the bills of exceptions which we have discussed. Ho bill of exception was taken to the charge given by the court to the jury, and no additional instructions were requested by defendants. We find no fundamental error in the charge. It appears to be a full and able exposition of the law applicable to the various phases of the case. But a single objection is urged to it in the motion for a new trial, and that objection is to a sentence which is most decidedly favorable to the defendant.
We have given this case a thorough examination, and have discussed, we believe, every question so ably presented by the counsel for appellant in his brief and also in his able argument made before the court. He has conducted the case with marked ability.
That defendant is guilty of this murder, whether he fired the fatal shots which took the life of Edmond Hill, or not, is incontestably established by the evidence, and we are of opinion the evidence, independent of his own confessions, sufficiently establishes his guilt. According to his confessions he entered voluntarily into a conspiracy to assassinate the deceased, and was present in pursuance of the plan at the time and place it was consummated. He has had a fair and impartial trial, so far as we can judge from the record before us, and by his own acts he has merited the punishment assessed. The judgment is in all things affirmed.
Affirmed.
[Opinion delivered December 16, 1885.]