HENDERSON, Judge.
Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal. Appellant reserved a bill of exceptions to the action of the court in overruling his application for a continuance. The application was predi cated on the absence of Dr. John Harris. By reference to the bill it will be observed that the case was first called for trial on the 14th of July, and that the application, for continuance was then overruled. On account of a defect in the service of the venire, the case was then postponed until July 25th. Another subpoena was issued on the 14th of July for the absent witness, but had not been returned at the time of the trial. The application for continuance was not renewed at that time, nor called to the attention of the court. The court explains that when the case was called up again, on the 25th of July, the defendant announced “ready for trial,” and voluntarily went to trial without objection. Before appellant could have availed himself of an error of the court in overruling his motion for a continuance, he should have presented said motion when the case was called on the 25th of July. He could not have availed himself of the action of the court on the preceding 14th of July, as it is shown he voluntarily went to trial on the day when the case was reset. Moreover, when we look at the evidence expected to be proved by the absent witness, we fail to see how it could have availed the defendant. Instead of availing him, it occurs to us that it would have been additional evidence to establish a malicious killing on his part. He proposed to show by the absent witness that the deceased, some time prior to the homicide, procured poison, alleging that she was going to mix it with whisky and kill him (defendant).
Appellant urgently contends that this case should be reversed because the evidence is insufficient to establish beyond a reasonable doubt a killing upon express malice. We can not agree to this contention. The evidence not only shows a grudge on the part of defendant against the deceased (his wife), as he claims, on account of her infidelity to her marital vows, but also that he expressed his intention to kill deceased some two days before the homicide occurred. He went to the office of one Loggins, county attorney, and asked him when court would convene; and, when he was informed that it would meet in about two weeks, appellant “said he wanted to know, because he wanted to get a divorce from his wife; that he was going to get rid of her in some way, if he had to kill her.” In addition to this, preparation is shown; for the record furnishes no other explanation of his having and carrying a gun to the scene of the homicide than with the object of killing his wife. When he arrived at the scene, he appears to have acted with great coolness and deliberation. He first set his gun down by the corner of the house, and then engaged in conversation with his wife, who was sitting on the front steps of the house, with the baby of Lillie Williams in her lap. He asked his wife where she was going on the 19th of June (Emancipation Day); and she replied that she was going to Oyster Creek, to a celebration, and asked him where he was going. He replied that he was going to town, and asked her what she wanted. She requested him to bring her a white dress, trimmed with red ribbons; and he said, “All right.” He then took the baby out of her lap, and placed it on the ground. He first started to put it down in the sun, but the mother of the child, who was present, asked him to put it in the shade, which he did. He then stepped to the corner of the house, where he had placed his gun, picked it up, stepped out in front of the house, and shot his wife in the side. He used a double-barrel shotgun, and the wound inflicted caused her immediate death. As soon as he shot her, he turned and ran away. All of these circumstances, to our minds, are indicia of express malice. It does not appear that the killing occurred on his first being informed of his wife’s unfaithfulness. The testimony shows otherwise, although in his own evidence he states that he had some conversation with her, just before shooting her, with regard to her intercourse with a particular person named, and he says that this was the occasion of his impulse to kill her. But the jury evidently did not credit his statement,—and from the record w.e think they were justified in discrediting it,—and believed that he had already made up his mind to kill her before he came on the place. Counsel for appellant strenuously insist that the moving cause that actuated appellant in slaying his wife-was her alleged infidelity, and that this unsettled and unbalanced his mind to that extent that the killing was not, and could not have been, with such coolness and deliberation as characterizes a killing upon express malice. Concede that the conduct of his wife was calculated to inflame his mind, yet, as stated, he was evidently aware of this for some time; and he evidently formed the intent and purpose to kill her some time before the homicide, and he went about the accomplishment of his object with that coolness and deliberation of mind which characterize a killing upon express malice. We do not understand the law to be, because the motive or actuating cause which brought about the homicide was of a character to influence and excite passion, that, when the killing is shown to have been accomplished under circumstances which show that the intent to kill was formed and the purpose accomplished in a sedate and deliberate mind, it would be any the less murder in the first degree on account of the operating cause which instigated the homicide.
Appellant raises a question as to the fairness and impartiality of one of the jurors who tried the case. In connection with his motion for a new trial on this ground, he appends the affidavit of McKelvey, who states that he heard the juror Henry Turk, on the day of the trial, and about twenty minutes before the jury was impaneled, say that the defendant ought to be hanged. In this connection he refers to another party, to wit, William Volbaum, who, he says, heard the juror so express himself. The motion for a new trial shows that the juror, when questioned, qualified himself to sit in the case, and was taken as juror. The State, in reply to this motion, presented the affidavit of the juror himself, who traversed and denied the affidavit of McKelvey; and this was supported also by the affidavit of Vollbaum, who states that he heard no such remark by Turk. These affidavits were all before the court, and he very properly, we think, overruled the motion for a new trial on this ac count. In regard to the suggestion contained in the record that the juror Barron separated himself from the other jurors, as explained by the court, there is nothing in it. There being no error in the record, the judgment is affirmed.
Affirmed.