concurring.
The exhaustive opinion of my able colleague, who announced the judgment of the majority of the court, leaves me nothing to say. Complying with the law, however, which requires me to state my reasons for concurring in the judgment, I wish to say that those reasons are to be found at length in the opinion of my colleague, and to add that on the point in which the venerable Chief Justice differs from us my views very briefly are these:
1. While as a circuit judge presiding in this case, I might have ruled differently on the motion for a continuance, yet I cannot say that the court abused his discretion in the ruling he made. He had the defendant before him and saw his condition; he could judge of all the surroundings; he heard the evidence ¡pro and eon; in the light of all the facts, he made his ruling, and I cannot say that he erred.
2. The meaning of res gesta is the thing carried on. To show the thing carried on, its beginning is as essential as its ending. - An enterprise is carried bn by acts and words. In*417•deed, whenever the internal operations of the mind are involved, words become verbal acts, and are admissible upon the same ground as acts. This thing, this enterprise was begun in the barber-shop; it was carried on all through the interval before the final meeting; it was carried on in that ■final meeting; it was carried on in the arming of each and what each then said; it was carried on in each shot that was fired; it was carried on until Alston lay weltering in his blood. Every act, every word, from the beginning to the •end, which carried on the thing, the enterprise, formed a part of the res gesta. The intention of both parcies was a leading question in the case. The state of their minds was involved. That state appeared by acts and by words, which took place while the difficulty was in progress; and the verbal acts of the parties were admissible like their other acts. But even if this view should not be conclusive — if as well the plain meaning of res gesta — the transaction — the thing as carried on from inception to conclusion — from the agreement to fight to its close in the homicide — as the well understood rules of law governing the introduction of testimony in respect to res gesta, be not applicable to all this transaction as developed by this evidence — then it will be seen that fihe defense either opened the door and entered on the investigation which admitted the other side also to go in, or by their own examination of their own witnesses proved •substantially the same occurrences which were but amplified -or more fully explained by the state.
Not only as res gestee, but on the principles last mention•ed, all the testimony was, in my judgment, admissible.
The entire charge is fair and legal — the evidence sustains -the verdict — and my sense of duty demands that I affirm it. Most gladly would I restore the living to freedom and family — the dead to life and family, if I could ; but these I cannot do.
. It remains that I administer the law impartially as I understand, it, and that leads me clearly to the conclusion that the defendant has had a fair trial — that he has been legally •convicted, and that the judgment should stand.