Thе plaintiff in error, E. T. Taylor, was convicted of the murder of Wade H. Belcher, and sentenced to be hanged. The deceased was assassinatеd while traveling along the public road near his home. There was evidence, that, two or three hours before the homicide, the accused quarreled with the deceased at the latter’s home and that the deceased ordered the accused from the premises; the accused left, armed himself with a pistol, and came to the shingle-mill of the deceased, inquired for him, using threatening language and vile epithets. Shortly thereafter thе deceased came to the mill, tarried a short while, and then left, traveling in a buggy and accompanied by his three-year-old daughter. The accused left the mill and went in the same direction the deceased had gone. Shortly thereafter three reports from a pistol or rifle were heard in the direction where the dead body of the deceased was found, and the accused was seen to jump over a fence a few feеt from the scene and run across a’field. The defendant set up an alibi, claiming that at the time of the homicide he was at a place about four hundred yards away from the scene of the killing.
Exceptions were taken to several rulings of the court on the admission and exclusion оf evidence. One objection was to the testimony of a witness that when he informed the accused of Belcher’s death the accused said, “Wеll, you know how Mr. Belcher has caused lots of trouble, and I can not help it, but I reckon now he-will stop,” and then asked the witness if he knew anything not to' tell it. This tеstimony was clearly admissible as an incriminatory statement. Exception was also taken to the court’s permitting a witness to assign as one of his reаsons for particularly observing the imprint of a pistol in the hip-pocket of the accused that he “did not like the expression of his countenаnce.” A potential circumstance in the case was whether the accused was armed with a pistol, and the witness was properly allowed to tell why his attention was directed to the imprint of a pistol in the pocket of the accused.
One witness' offered by the defendant to establish his alibi was asked if she had not previously made a contradictory statement as to a material matter at a particular place and timе to Bud Wilcox. She denied making the statement;, whereupon the State-introduced a witness, whose name was given as D. J. Wilcox, to prove that she had made the statement to him. It was objected that the proper foundation had not been laid. We gather from the brief' of defendant’s counsel that thе objection rests upon the failure of the State to prove in terms that D. J. Wilcox was the same indi
There were also many objections taken to the charge of the court, several of which related to the allusion of thе court that Belcher had been killed as amounting to an expression of opinion that an unlawful homicide had been established by the evidence. It is true that under our system of jurisprudeneé the judge is forbidden to express an opinion as to whether any particlar fact has been proved; yet, whеre the evidence to establish such fact is undisputed, and the fact is admitted by the accused on the trial, it is not necessarily error for the court tо assume such fact in formulating appropriate instructions to the jury. The only inference deducible from the evidence was that the homicide wаs an assassination, and the defendant in his statement several, times referred to the killing of Mr.
On the hearing of the motion for new trial the court heard testimony as to the existence of newly discovered evidence. Even if the evidence was not cumulative, and proper diligence to discover it prior to the trial was shown, its character was not .such as would probably produce a different result.
Judgment affirmed.