On the trial, as a predicate for the introduction of the written testimony of the witness Auger, given at the examining trial of the defendant, and to show that said witness was beyond the jurisdiction of the court, the State proved by Major C. H, Carleton that he, the witness, was acquainted with Auger, who was, at the time of said examining trial, a lieutenant in Company F, Twenty-fourth United States infantry, and temporarily stationed at Fort Elliot, in Texas, which fort was under the command of the said witness Carleton. That “Company F, Twenty-fourth infantry,” to which Auger belonged, “was then and now is stationed at Fort Sill, Indian Territory. Soon after he (Auger) testified (some five or six weeks ago), he was ordered to Fort Sill, Indian Territory, to join his company, and I supplied him with transportation for the journey, and he departed to join his company at Fort Sill, Indian Territory, in obedience to said order, and about three or four weeks ago, I received a telegram, signed A. A. Auger, announcing his arrival there, and saying when the transportation furnished him by me would return to Fort Elliot. The secretary of war, the department commander, or the commanding officer of any post at which he may be stationed, can order said Auger where they deem proper. There is a United States post at San Antonio, Texas, the headquarters of the Department of Texas. *384For all I know, Lieutenant Auger may be at San Antonio, Texas, now. In fact I do not know whether he is within or without the borders of the State of Texas. His station and company is now stationed at Fort Sill, Indian Territory. When he left here he started for that post, and I do not know of his having been ordered elsewhere. When he was here we were short of officers, and he was sent from here to Fort Elliot temporarily.”
From this testimony it would appear that the witness Auger’s permanent residence, if he had one, was at Fort Sill, in the Indian Territory, and that his stay at Fort Elliot, Texas, was only for a temporary purpose, which purpose having been accomplished, he left to return to his place of permanent residence, to wit, Fort Sill, in the Indian Territory. It is judicially known to this court that the Indian Territory is beyond the jurisdiction of Texas. (Swofford v. The State, 3 Texas Ct. App., 76.) Under the statute a predicate for the introduction of such testimony as that proposed in this case is sufficiently laid when it is shown that a witness resides either out of the State, or that he has removed beyond the limits of the State. (Code Crim. Proc., art. 772; Evans v. The State, 12 Texas Ct., App., 370; Pinckney v. The State, Id., 352; Garcia v. The State, Id., 335; Parker v. The State, 18 Texas Ct. App., 72.) The fact that a party is beyond the jurisdiction of the court, or beyond the limits of the State, may, as any other fact, be established by circumstantial evidence. We are of opinion that the predicate was sufficiently laid down for the introduction of the testimony as above stated, and that the court did not err in so holding.
In connection with this testimony, however, the appellant reserved another bill of exceptions, and strenuously insists that the court erred in permitting the witness Carleton to testify, as he did, over objection of defendant, to the receipt by him of a telegram from Lieutenant Auger, after the latter had reached Fort Sill, and which fact was made an important circumstance to show that Auger was in fact at Fort Sill, in the Indian Territory. Two objections were urged in regard to this testimony. First, because original telegram was the best evidence; and, second, because the State having failed to produce the original, the secondary evidence of the contents of the dispatch was inadmissible.
We admit that, as to contracts, and where it is sought to render parties directly interested in the subject matter liable on account of communications by telegrams, the appropriate pri*385mary evidence, in strictness, would ordinarily be the original message delivered to the telegraph company by the sender, or the transcript delivered by the company to the receiver. (Abb. Trial Ev., 290; 2 Whart. Ev., 2 ed., sec. 1128; Williams v. Brickell, 37 Miss., 682; Matteson v. Noyes, 25 Ill., 591; Comm. v. Jeffries, 7 Allen, Mass., 548.) But this rule obtains only when the contents of the telegram become essential in determining the rights of parties; whereas in this case the object sought was not to prove the contents of the telegram, but the independent fact that Carleton had received the same, purporting to be from Lieutenant Auger. We see no reason why this could not be done by parol evidence, without the necessity of producing the telegram itself. At best, the fact of his receipt of the telegram was but a circumstance tending to establish the main fact, and the contents of the telegram were not the matters sought to be established. The contents of the dispatch would have added no weight to the fact, nor have determined the fact that he had or had not received the telegram; and the fact that he had received such a telegram could be stated by him without the necessity of producing the telegram. (Kennedy v. The State, 9 Texas Ct. App., 620.) We are of the opinion that there was no error in the ruling of the court in admitting all the testimony of the witness Carleton, going to establish a predicate for the admission of the testimony of Auger. This disposition of the main question relieves us of the necessity of discussing the several other bills of exceptions contained in the record with regard to the acts and rulings of the court complained of growing out of the admission of this testimony.
The seventh error complained of is that the court erred in instructing the jury upon the law of murder in the second degree, and in submitting murder in the second degree as an issue in the case. The correct rule is, that to relieve the trial judge of the duty of charging upon lower degrees of culpable homicide, the evidence must establish the highest degree; for, if there be reasonable doubt it must be solved by the jury and not by the court. This rule applies to all cases in which the greater includes the lower degree of culpability. (Benevides v. The State, 14 Texas Ct. App., 378.) It is error to charge the jury that they must either convict of murder in the first degree or acquit, if by any possible legitimate construction of the evidence the jury might have found the defendant guilty of murder in the second,degree. (Edmundson v. The State, 41 Texas, 496.) And *386the Supreme Court of this State has even gone so far as to hold in one case, that where the evidence established murder in the first degree, it was not error of which the accused can complain that the court charged the jury that they might find the defendant guilty of murder in the second degree, or of manslaughter. (Benevides v. The State, 31 Texas, 579.) The rule laid down in Saunders v. The State, 41 Texas, 306, is that a failure to define murder in the second degree, in a case where the jury upon the evidence might have found the defendant guilty of the less offense will be cause for reversal, whether the instructions were asked or not. In the case in hand the jury have found the defendant guilty of murder in the second degree, under the charge of the court submitting that degree to them.
Opinion delivered May 21, 1887.With regard to the sufficiency of the charge of the court upon self defense, which is also complained of as error on the part of the appellant, the objection uged is that, in reference to reasonable appearance of danger, the court omitted to instruct that such reasonable appearances were to be judged of from the standpoint of defendant. The rule contended for is well settled that a defendant has the right to have the appearances judged of from his own standpoint. (Patillo v. The State, 22 Texas Ct. App., 586, and authorities cited.) Ho special instruction to this effect, however, was asked by defendant. As given, the charge of the court presented- the law applicable to the facts of this case, in the language of the statute.
We have discussed all the material questions in the case, and having found no reversible error, the judgment is affirmed.
Affirmed.