On the Merits.
By the WHOLE COURT. PROVOSTY, C. J.Charles Oliver (alias Steam Shovel), the accused, was indicted ■ jointly with one John Epps for the murder of one Jack Donald, and was found guilty as charged, and sentenced to be hanged.
[3] The first bill of exception is to the refusal of a continuance applied for on the ground of the absence of material witnesses. The return of the sheriff on the summonses showed that the witnesses could not be found, and the motion for continuance did not allege that it would be possible to find them later.
The ruling was correct.
[4] An order for 15 de talibus jurors having been made, and 14 of them having been *663duly summoned, and having appeared, and 1 of them not having been properly summoned, and being absent, the prosecution, in order to avoid delay, challenged peremptorily this absent juror. The accused objected to the trial being proceeded with before the juror had been duly summoned. The irregularity, if such it was, of allowing this peremptory challenge, was certainly not injurious to the accused, since the right of the prosecution to peremptorily challenge the juror on voir dire could not be, and is not, questioned.
[5] The next two bills relate to the admission of evidence of the happenings immediately before the homicide. In a game of craps in which the decedent, the two accused, and two others were engaged, the accused, having lost all his money, pawned his pistol to one Hagen for more money; and, having lost that, went to his house and got $60, all of which he soon lost, except $15, and $5 which he gave to Hagen in redemption of the pistol. The pistol was not then returned to him; it having been given to Ha-gen’s wife for safe-keeping. When the game broke up, John Epps got the pistol from Ha-gen’s wife,- and gave it to accused; and accused came to where the late participants in the game, except decedent, were standing, and in the course of the conversation made the statement:
“I am going to stick Mm” (decedent) “if I have to do it in broad daylight, and I may have to throw him away.”
Evidence was allowed to go in as to this game and as to this procuring of the pistol, and as to the conversation. The judge says:
“Other testimony shows that the accused was searching for the deceased from the time the gambling game ended until the shooting occurred, and that the shooting was done with the pistol handed to the accused by John Epps. The incidents .were in quick succession, all closely connected with each other and thereby with the shooting itself. They were highly relevant and important in proving motive and malice.”
The circumstances thus immediately preceding the fatal event, and contributing to bringing it on, were certainly relevant; and evidence of them was certainly admissible for showing malice.
[6] A witness testified that the decedent, after having been shot, told him to get his wife; that he had been killed.
This testimony was objected to. The trial judge says of it:
“The statement was part of the res gestae; and at all events was not injurious to the defendant. It contained no charge against him; gave no account of what had occurred, and meant nothing more than a statement of what was already perfectly obvious — that the man was badly hurt, and wanted his wife to be informed of it.”
Evidently, the admission of this evidence was not injurious, and therefore is not ground for reversal.
Judgment affirmed.
O’NIELL, J., dissents. A part of the proceedings in the case, the appointment of an attorney for the accused, was had on a dies non, October 12th.