Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.
Appellant was indicted under the name of George Henry. On the trial be suggested that his name was Grant Carter, and not George Henry, *Page 313 and that the prosecution proceed against him in his true name. The court refused to change the name and appellant excepted. In explanation of the bill, the court states that defendant had been arraigned under the name of George Henry, and entered a plea of not guilty under said name before the order changing the venue to Wise County was made and entered. The time for defendant to have moved the court that the prosecution proceed against him in his true name, as alleged by him, was on his arraignment; and article 548 of the Code of Criminal Procedure of 1895 expressly provides that, if it is not then done, the name by which be is indicted shall be taken as his true name, and he shall not thereafter be allowed to deny the same by way of defense. This would seem to indicate that, if the suggestion is not made opportunely on arraignment, the suggestion thereafter made comes too late. See Wilcox v. State, 31 Tex. 586 [31 Tex. 586].
Appellant presented a motion for a continuance, which was overruled by the court, and he assigns this action of the court as error. He claims a continuance on account of the absence of Bob Young, Minnie Carter, Adeline Coble, Ed. Wheeler, and Martin McCoy. As to Ed. Wheeler, he was present, and testified on the trial; so he is eliminated. The application shows that appellant relied on the State's process for Bob Young; that the State had had process issued for him to Denton County, and that it was returned that day, showing that said witness was not in Denton County, but in Grayson County. It was alleged that Minnie Carter and Adeline Coble lived in Tarrant County, and that the process was duly served on them on March 7, 1897; that, as to Martin McCoy, he resided in Cass County, and that an attachment was issued for him on March 6, 1897, and the same was duly served on March 9, 1897. It is not shown how said process was served. The application only states they were served, and we are left to conjecture as to how said service was made. But assuming that they were properly attached, and placed under bond to make their appearance at the District Court of Wise County, which began on. May 24, 1897, and adjourned on July 14, 1897, there appears a total lack of diligence in procuring the attendance of these witnesses. If they were not present when court met on the 24th of May, or some day set apart for taking up the criminal docket, the defendant was at once entitled to an attachment; and the application utterly fails to show anything in regard to these witnesses except that they were served in March, and that they were not present on the day the application for continuance was made, which was on June 28, 1897. We can not assume, in the absence of a showing, that said witnesses were present during that term of the court, and only made default on the day said case was tried. The bill should have shown such attendance, and when said witnesses made default, in order that we might judge intelligently of the diligence used. In regard to the witness Young, appellant proposed to prove by him that he was in the jail, in cell No. 1 (being the same cell in which one Otho Williams was confined, who testified for the State), when the homicide occurred; and he proposed to contradict by said Young some of the material *Page 314 facts stated by the State's witness Otho Williams. When the motion for a new trial on the ground stated in the motion for a continuance was presented to the court, the State had procured the affidavit of said Bob Young, which affidavit showed said witness agreed with and would corroborate Otho Williams in every material particular. It was competent for the State to pursue this course, and this affidavit shows that said witness would not only not serve the purpose of the defendant, but would be a very material witness against him.
The application shows that the defendant expected to prove by the witnesses Minnie Carter and Adeline Coble that they have known the defendant since he was a small child, and that he was not 17 years of age in February, 1897. It will be noted that the above does not contain any distinct statement of facts, but merely the conclusions of said witnesses in the most general terms. How small defendant was when they first knew him (except as stated, that he was a small child), is not shown The means of information of said witnesses is not stated; and we are not informed who Minnie Carter and Adeline Coble are, and what their opportunities were of knowing the age of defendant. In other words, the testimony is stated (if it can be called testimony) in the most general terms, and it would be exceedingly difficult to predicate perjury upon such allegations. We make the same observation in reference to the testimony of Martin McCoy, by whom it was stated that appellant expected to prove that he worked with him in 1894, and that defendant was then a small boy, wearing knee pants. The age of the defendant was made an issue in the trial. On this question appellant introduced his mother, and his sister, Pinkie, and Ed. Wheeler. These witnesses do not testify with any degree of clearness as to the defendant's age. Rena Carter, defendant's mother, stated that he would be 17 years old on August 23, 1897, which would make the date of his birth August 23, 1880. She furnished no written data, nor did she allude to any in her testimony, and it was shown that she had testified on a former occasion (evidently in reference to this case), and made his birth August 23, 1881. Appellant's sister, Pinkie, who was shown to be older than he, was more indefinite than the mother was in her testimony touching this point. She says that some two years before the homicide she cooked for Mr. Pierce in Gainesville, and that her brother (defendant) came there, and stayed some time; that he was a small boy, and wore knee pants, but she did not know how old the defendant was; that he was larger now than he was then. Ed. Wheeler, her husband, testified to the same effect, only he stated that appellant was then wearing long pants. The State on this issue proved by Verner that when appellant was born he was a near neighbor of his father; that he (witness) was then about grown; that appellant, whose name is Grant Carter, was born in the summer of 1877, and he relates facts that impress this upon his memory. One fact is that the child was named Grant, which was an unusual name in the South at that time; that he was born the same year that General Grant retired from the office of President, and that the baby was named for him. Emmett Alexander testified that *Page 315 he was a near neighbor of the father of Grant Carter when appellant was born, in Parker County; that Rena Carter, the mother of appellant, had a litttle book in which she kept a record of the births of her children, and that she, not being able to write, got witness to record the births of several of her children, among others, that of Grant Carter, who was born in August, 1877, and also of Hayes, her next child; that he remembered the incidents from the fact that he made a record of it, and because it was the first child that he knew to be called for General Grant. He also stated as another reason for his remembering the age of the child Grant that he had a boy named Sterling, who was born in March 1877, and the defendant being born in August, 1877, it would only make about six months difference in the ages of the two children. John Osborn, another witness, testified that he also was a neighbor to Steve and Rena Carter when the defendant, Grant Carter, was born; that he had a distinct recollection that Grant was born in 1877. Tom Bell, sheriff of Hill County, and his deputy, Dave Jones, both testified that appellant was in jail in Hill County on a charge of theft, and that his codefendants, Will Miller and Arthur Gilmore, were also in jail on the same charge; that appellant proposed to plead guilty, and to exonerate his codefendants; that it occurred to him that possibly his purpose was to go to the reformatory, and that he warned him, and questioned him as to his age; that appellant stated to them that he was then 19 years of age. This testimony on the part of the State gives data and events which render it almost absolutely, certain that appellant was about two years over 17 years of age when he committed the homicide; and it does not occur to us that, if it be true that the witnesses, on account of whose absence the motion for a continuance was made, would testify as therein alleged in general terms, the jury would believe them, or that their evidence would conduce in any wise to change the result as to the age of appellant.
There is nothing in the matter suggested in appellant's third bill of exceptions. He was duly warned before he made the statement. The warning was not more than hour before the statement was made, and there is no suggestion that appellant had forgotten the same, or that it was not operating upon his mind at the time he made the statement. He was in charge of the same officer who gave the warning. There was no error in this action of the court. Nor was there any error in admitting the testimony of the witnesses Tom Bell and his deputy Jones, as to the statement made to them by the defendant in regard to his age, who was duly warned before he made this statement. Although his arrest was in another case, and the statement made by him was not in the nature of a confession relative to this case, it was, however, the statement of a fact made to the officers after he had been duly warned, and we see no reason why such statement was not admissible. The statute, of course, has relation to confessions, and provides that they shall not be admissible when a party is in jail, unless he has been duly warned. We do not understand this to exclude any statement that can be used in evidence against a defendant in any other case, provided such statement or declaration *Page 316 was made under the conditions guarantied by the statute. We understand the statute to refer to confessions as such, but we do not construe it to exclude other statements, not in their nature confessions; and we hold that when a defendant under arrest has been duly warned, and he makes a statement, that such statement can be used in any case in which he is then under arrest, or in any other case, if the statement involves a material fact, and is otherwise admissible in evidence. The statement of his age, made to these officers, is of no fact conducing to his guilt on the charge of homicide; but was purely a collateral matter, not admitting his guilt of anything, but simply a statement of his age. It was made after due warning, and is admissible in evidence in any case in which the question of his age may arise. The court did not err in excluding the testimony of the witnesses Lawrence Jones, Lewis Beeville, and Allie Edwards, by whom it was proposed to prove that they were larger than the defendant, and that neither of them was over 16 years of age. This testimony could certainly not serve as a test or criterion as to the age of the defendant. Nor was there any error in that part of the charge of the court contained in paragraph 11, about which appellant complains. We understand the court, to submit in said charge the issue to the jury as to whether or not said stick of wood was a deadly weapon or instrument calculated to produce death in the manner in which it was used; and certainly this charge, taken in connection with paragraph 17 of said charge, places the matter of intent on the part of the defendant, in connection with the instrument used, clearly before the jury. Paragraph 17 is as follows: "The instrument or means with which a homicide is committed are to be taken into consideration in judging of the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intent evidently appears."
Appellant also complains of the action of the court in overruling his motion for a new trial on the ground of newly-discovered evidence. We have examined the same, and we can not regard the evidence as either material or as newly-discovered. We have given the record in this case a careful consideration, and find no errors. The jury inflicted the highest penalty known to the law, and, in our opinion, the evidence amply warrants their finding. There is no question that the homicide was committed by appellant for the purpose of effecting his escape from the jail. He slew an officer, who, on account of his real or feigned sickness, had been kind to him in allowing him indulgences not accorded to other prisoners. The killing was carefully planned, and carried out with a degree of deliberation and brutality that has few parallels in its atrocity.
We see no reason for disturbing the verdict of the jury, and the judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent. *Page 317