The appellant was tried and convicted of murder in the first degree, and a motion for a new trial and arrest of judgment was overruled, and judgment awarded ; but the prisoner having appealed to this Court, the time of execution was not fixed. Several grounds have been taken in this Court, by the appellant’s counsel, on which a. reversal of the judgment is claimed.
The first, the supposed defect in the indictment, was well argued by counsel in the case of Gehrké v. The State, at the last Term, (13 Tex. R. 568 ;) and after mature consideration, the indictment was held to be good and sufficient, without following the precise words of the statute, “ premeditated or deliberate.” We regarded malice express, as the gist of the of-fence of murder in the first degree, and that it had been premeditatedly or deliberately done, as the evidence or indicia of that malice. The charge in the indictment against the appellant, is, “ feloniously, wilfully, premeditatedly and of his malice *217aforethought,” omitting the word in the statute, “ deliberate.” We are satisfied with the decision on this question, made at the last Term, and we will not alter or modify it in this case.
The objection to the writ of venire facias, and to the Sheriff's return thereon, is not believed to be supported by the record, and will not be noticed.
The objection, that three of the jurors, who passed upon the guilt of the prisoner, do not appear to have been summoned on the venire, nor do their names appear thereon, cannot be taken for the first time in this Court. The objection should have been made, when called, and offered to the prisoner.— The jury was sworn, and no objection made. It is most probable, that they were called after the venire had been exhausted, which accounts for their names not appearing on it.
The only objection, believed to be entitled to any consideration, is the rejection of the persons offered as jurors, upon the ground of their having conscientious scruples against capital punishment. On this question there has been some conflict in the opinions of eminent jurists. It would seem, however, that on principle it would be difficult to make such persons good, impartial and indifferent jurors: and to put men on the jury, whose conscientious scruples would override their oath, ‘would result inevitably in either a mistrial or an acquittal, irrespective of the facts proven. The religious scruples of every citizen are entitled to respect, and no man should be placed in a position where he is required to do violence to his conscience, or to commit perjury, or to disregard the obligation of an oath. If placed in that position, against his will, he would he apt to regard his own conscientious scruples of higher obligation than his oath. A man's sincere, conscientious scruples are entitled to great indulgence, and it is for his protection, the question is asked. There is better reason for asking it and for making it a sufficient ground for setting him. aside as not a competent juror, than for asking the juror, when offered, if he had formed and expressed an opinion of the guilt *218or innocence of the accused, or if he had any prejudice against him. In these cases, the very questions would imply a charge against the juror, of the impropriety of having so formed an opinion, or of having harbored and nourished in his heart ill will towards his fellow man; and some eminent jurists have therefore concluded that a juror should not be required to respond to such enquiries. We cannot believe that it is improper to ask the juror if he entertains such scruples, and if answered in the affirmative, he ought to be set aside as not a good juror.
We find nothing in the record in this case, to authorise us to reverse the judgment; it is therefore affirmed.
Our attention has again been directed to the record in this case, and there is but one point presented, not noticed in the above Opinion, that we regard as requiring of us any notice. It is insisted by the counsel for the appellant, that it does not appear, that he had been asked in the Court below, whether he had anything to say, why sentence should not be passed on him ? In trials at common law, for murder, on conviction, the prisoner had no right to an appeal. Under our laws an appeal is made a matter of right, and where an appeal is claimed, the Court does not pass sentence ; the judgment is entered on the verdict, but no sentence is passed until after the appeal has been tried in this Court, and certified to the Court below. If affirmed, the Court, at its first Term thereafter, passes sentence and awards the execution thereof. The prisoner will then be asked if he has anything to say why sentence should not be passed on him. He has had the benefit of a motion in arrest of judgment and fop a new trial, before the case came into this Court, and this is all that of right he could claim, before the appeal was taken. We se$ no legal ground for a different judgment, than the one entered in accordance with our original Opinion.
Judgment affirmed.