On Motion for Rehearing.
Willson, Judge.After considering the very able arguments and briefs of counsel for defendant on this motion, and after a careful and thorough re-examination and reconsideration of the record, a majority of the court adhere to their views expressed in their former opinion, and hold that there is no error in the conviction for which it should be set aside.
It would be unprofitable, we think, to enter upon an elaborate discussion of the questions determined in our former opinion. We will, however, add some further remarks in support of our views heretofore stated.
1. As to the definition of “ malice ” given in the charge of the court. It was well said by Judge Clark in Harris v. The State, 8 Texas Court of Appeals, 90, that “ a perfectly exact and satisfactory definition of that term (malice), signifying its legal acceptation in a form at once clear and concise, has been often attempted, but with no very satisfactory perma*277nent result. The differing minds of different courts have employed different terms and language in an attempt to convey substantially the same meaning; and while a general similarity is apparent in all the definitions, the legal mind has not yet .crystallized the substance of the term into a terse sentence readily comprehensible by the average juror.” And it was held that while the definition of malice contained in the charge given in that case was not exact to a critical nicety, it was substantially sufficient, as it enabled the jury to distinguish the legal meaning of the term in contradistinction to its ordinary import. In the subsequent case of McKinney v. The State, 8 Texas Court of Appeals, 626, the definition before the court was precisely the one objected to in this case, and the objection urged to it was the same—that is, that it omitted the word "extenuation” after the words "justification or excuse.” This court held the definition sufficient, remarking that it was a fuller definition than the one held sufficient in the Harris case, supra. In Lander v. The State, 12 Texas, 462, a definition of malice, given by Russell, in his work on Crimes, is cited with approval. It is as follows: " Malice in its legal sense denotes a wrongful act done intentionally, without just cause or excuse.” This definition is substantially the same as was given in this case. We do not claim that the definition of malice given in this case is critically correct and absolutely perfect. What we hold is, that it is substantially correct and sufficient. That it enabled the jury to distinguish between the legal and common signification of the term, and this was all that the law requires in a definition of malice in such case. The definition of "malice” given in McCoy v. The State, 25 Texas, 33, and approved by this court in Tooney v. The State, 5 Texas Court of Appeals, 163, is, we freely admit, a more complete one than was given in this case.
Again, in considering the sufficiency of the definition of malice, we should look to other portions of the charge explaining malice. Immediately following the definition objected to is an explanation of express malice as follows: "Express malice aforethought is where one with a sedate and deliberate mind and formed design unlawfully kills another,” etc. It required this kind of malice to constitute murder in the first degree, and this explanation of express malice in and of itself fully expresses the legal meaning of malice, for if the killing was unlawful, and if the slayer committed the act deliberately, and in pursuance of a formed design to kill, the killing would be upon malice. There could be neither justification, excuse, nor extenuation for the act.
2. As to the charge on alibi, as stated in our former opinion, it is substantially the same as one approved by this court in Walker v. The State, 6 Texas Court of Appeals, 567. We are unable to appreciate the soundness - of the objections made to this charge. It is urged that the charge is wrong because it requires the jury to believe, in order to acquit the defendant, 'that he was not and could not have been the person who killed the deceased. *278The use of the words could not, it is urged, mean, in effect, that it was-, impossible for the defendant to have committed the murder. We do not. think this is a fair criticism upon the charge, or that a jury would give-to it such meaning as counsel for defendant suggest might be given to it. The charge upon this matter should be read and considered in its entirety,, and when this is done, it is not obnoxious to the criticisms made upon-it. Following the sentence in which the words “could not” occur, the-charge proceeds, “¡Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the deceased was killed (if killed) at the time of such killing, then you should acquit the defendant.” It seems to us that no jury of ordinary intelligence would understand from this charge that it devolved upon the defendant to prove that it was impossible for him to have been present at the time and place of the killing; or that the burden of proving an alibi rested upon the defendant. We think the charge states the law plainly and correctly, and that it could not reasonably have been misunderstood by the jury. The charge is not as unfavorable to the defendant as many authorities would justify. It is held by good authority that, while an alibi need not be proved to that extent that it absolutely precludes the-possibility of the defendant's presence at the time and place of the commission of the offense, yet the range of the evidence must be such as-reasonably to exclude the possibility of such presence. 1 Eng. and Am. Ency’p. of Law, p. 456. But the charge is more liberal to the defendant,, as is also the rule declared by the decisions in this State. It is only required by said charge, and by the rule of law of this State,-that the jury should, from all the evidence in the case, entertain a reasonable doubt off the presence of the defendant at the time and place of the commission of the offense. If the jury have such reasonable doubt, it entitles the-defendant to an acquittal, although the evidence may not exclude reasonably the possibility of such presence. In addition to the authorities heretofore cited relating to alibi, we refer to an able and exhaustive article-entitled “ Cautionary Instructions in Criminal Cases ” written by Seymour D. Thompson, and published in 10 Criminal Law Magazine, page 179, section 19, et seq. That article cites and reviews many decisions relating-to alibi, and states the rules deducible from them, and those rules are in accord with our views as expressed in this and our former opinion in this - case.
An objection not heretofore made to the charge is presented by counsel for defendant on this motion. It is to that portion of the explanation of express malice -which states that a sedate and deliberate mind and formed, design is evidenced by external circumstances discovering that inward intention, as lying in wait, etc. The objection made is, in effect, that this portion of the charge is upon the weight of evidence, and virtually tells-the jury that express malice is proved when any of the conditions enumer*279ated in the charge are shown to have existed. This precise charge and objection thereto have heretofore been before this court and determined adversely to the objection, and we think correctly., Sharpe v. The State, 17 Texas Ct. App., 486.
It is again urged on this motion that there was error in the admission of the testimony of the witness Barbee touching the declarations to him of the witness Judy James. A majority of the court still entertain the opinion that this testimony was, under the circumstances, properly admitted. Barbee was asked by defendant’s counsel if he did not say to Judy Janies that her husband’s neck was in danger if she did not tell what she knew about the murder? Barbee answered that he told her something to that effect. Counsel for the State thereupon asked Barbee to state what Judy James said to him in reply to what he had told her, and over the objection of defendant that her reply would be hearsay evidence, the court permitted Barbee to testify to the effect that she said in reply that she was afraid to tell what she knew about the murder, in the crowd, because Mr. Gallaher was one of the men; that she heard the shots in the prairie at the time of the murder, etc. This testimony was held admissible by the trial judge upon the ground that it was drawn out by defendant’s counsel on cross-examination of the witness Barbee on the same subject. It is a provision of our statute that when part of a conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other party. Code Grim. Proc., art. 751. There was a conversation between the witness Barbee and the witness Judy James upon the subject of the murder, and the knowledge of facts possessed by Judy James relating to the murder. Counsel for defendant in cross-examining Barbee put in evidence a part of that conversation—that is, what he said to Judy James. The purpose of this was to affect the credibility of Judy James’s testimony. It could subserve no other purpose. A part of the conversation having been put in evidence by the defendant, the State was entitled to have the whole thereof upon the same subject put in evidence. Judy James’s reply to what Barbee had said to her was a part of the same conversation, and was upon the same subject, that is the murder, and her knowledge of it; and further, her reply explained her reason for not sooner divulging the facts of the transaction within her knowledge. A majority of the court entertain no doubt of the admissibility of said testimony. In this connection we will say further, that this testimony having been drawn out by the defendant with the purpose of impeaching the credibility of the witness Judy James, it was not material error to omit an instruction to the jury as to the purpose of said testimony, directing that it could be considered for that purpose only. The charge was not excepted to because of such omission, nor was an instruction upon this point requested. If the admission of said testi*280mony was prejudicial to the defendant, he can not complain, because he drew it out and is alone responsible for its being in the case.
With regard to the proposed testimony of the witness Peareson, a majority of the court still hold that the trial judge did not err in his rulings. Said witness was permitted to testify to the facts connected with the land litigation between defendant and deceased in so far as said facts were pertinent and competent evidence. It was not competent for any purpose, we think, to prove by said witness the advice he gave as an attorney to the defendant in relation to the said litigation, or the defendant’s opinion of his legal rights in said litigation, or the advice given by the judge and others to the deceased to accept a compromise offered her by Gallaher, etc. It seems to us that all the matters sought to be elicited by the questions which the court would not permit to be answered are incompetent as evidence for any purpose. They consist of the defendant’s acts and opinions prior to the murder; of the opinion and advice of his counsel, and of the acts, opinions, and advice of others with reference to the land litigation. It is contended by counsel for defendant that this testimony was admissible as tending to show an absence of motive on the part of the defendant to commit the murder. We do not deny that it was the right of defendant to prove any fact or circumstance which would tend to show absence of motive on his part, but such proof must be made by legal, competent evidence. Acts and declarations of the defendant not being part of the res gestee are not competent evidence in his behalf. Nor can we see upon what principle the opinions and advice of his counsel in the land suit could be held admissible evidence in his behalf. Suppose his attorney had advised him that he would certainly be defeated in the suit and would lose the land, would such testimony be admissible in behalf of the State? Certainly not. Then why should it be admitted in his behalf? We know of no rule or precedent which would admit such testimony. As to the advice given to the deceased to accept the compromise offered her by the defendant, and her refusal to accept such offer, that was matter wholly irrelevant, and if it could have any effect whatever, that effect would be prejudicial to the defendant, because it would show cause for malice against her on the part of the defendant.
It is insisted by counsel for defendant that the conviction should be set aside upon their twenty-fourth assignment of error, which is as follows:
“Because the court erred in permitting, to the prejudice of defendant’s rights, the counsel for the State while re-examining the witness Judy James, to cause the defendant James Gallaher to stand tip before the jury and put on his head a broad brimmed hat, and put over his face a handkerchief, and then thus exhibiting the defendant before the jury to ask Judy James if that was the way Gallaher looked at the time she saw him on the night of the murder, and in permitting Judy James to testify ^that was exactly the way he looked,’ thus permitting and requiring the *281defendant to testify against himself, to the material injury and prejudice of his rights.”
This matter was not discussed in the former opinions delivered in this case, for the reason that we did not consider that it was presented properly—that is, by bill of exception. We are still of the opinion that under the practice in this State, the matter is of that .character which should be presented by bill of exception. We will, however, in deference to the •earnest insistance of counsel for the defendant, give our views upon the question. We do not understand that the defendant was “ compelled to give evidence against himself.” He was not required by the court to submit to the disguise and exhibition of himself before the jury. There was no compulsion used against him. He made no objection whatever to the disguise and exhibition of which he now complains. For aught that appears he not only consented to it, but may have been desirous of the test— willing to take the chances of it. He may have believed that the witness Judy Janies would fail to identify him when in such disguise, and so believing, may have been willing and anxious to have the test applied. How can it be said then that he was compelled to give evidence against himself? If he had objected to such test, and the court had required him to undergo it, a very different question would have been presented. Suppose counsel for the State had placed the defendant upon the witness ■stand, and had him sworn to give evidence in the case, and without objection on the part of the defendant, he proceeded to give evidence against himself, could he be heard to complain that he had been compelled to give •evidence against himself? We think not. £t was the privilege of the defendant to not give evidence against himself, but it was within his power, .and was his right to waive such privilege, and having done so, he can .not complain.
But it is contended that the mere proposal made by counsel for the State to make the test was error, which should reverse the judgment. There would be strength in this proposition if the defendant had interposed any objection to the proposal. He did not object, but acceded to the proposal, and voluntarily underwent the experiment, thus waiving, we think, his privilege, whatever that privilege may have been. We have found no authority and have been referred to none which holds that a defendant may not voluntarily give evidence against himself, or may not .accede to a proposal to give evidence against himself. If, in this case, the defendant had declined to be disguised and exhibited, the court would ■doubtless have protected him in his constitutional right to be exempted from giving evidence against himself. As the matter is presented to us, and as we understand it from the record, no error is made apparent of which defendant can complain.
As to the sufficiency of the evidence to sustain the conviction, we have heretofore expressed our conclusion, and a re-examination of the facts has *282not changed that conclusion. The witness Judy James identified the defendant as one of the three parties who took the deceased from the house on the night of the murder. There can be no question but that the murder was committed by those three parties. Conceding that this conviction rests alone upon the testimony of Judy James, that testimony supports the conviction. It was the exclusive province of the jury to pass' upon her credibility, and this court can not question the truth of testimony when it has been credited by the jury and judge before whom it was given. There is, it is true, much evidence which tends to show that the defendant was not present at the time and place of the murder. We can not say that the conviction is unsupported by, contrary to, or against the weight of the evidence.
The motion for rehearing is overruled.