Appellant was indicted for the murder of Edward B. Garner, in San Patricio county, on the 26th day of August, 1876. Two unsuccessful attempts having been made to obtain a jury for the trial of the case in San Patricio county, on application of the district attorney, made in accordance with the provisions of article 579, Code Crim. Proc., the venue was changed to the county of Nueces. By a new provision in our Code of Criminal Procedure, it is declared that “when the venue in a criminal action has been changed, it shall not be necessary to have the witnesses therein again subpoenaed, attached or recognized, but all the witnesses who have been subpoenaed, attached or recognized to appear and testify in the cause, shall be held bound to appear before the court to which the cause has been transferred, in the same manner as if there had been no such transfer.” Code Crim. Proc. art. 591.

*22When the case was called for trial in Nueces county, appellant moved for a continuance on account of the absence of several witnesses who had been duly subpoenaed in San Patricio county, and who had not been so in default that other process might have been invoked prior to or since the change of venue. This motion was overruled by the court. So far as diligence was concerned the application was, perhaps, sufficient under the statute. Doubtless the materiality and admissibility of such testimony as that proposed to be derived from the absent witnesses was the controlling question which determined the action of the court in refusing to grant it. At all events, such considerations must govern us in passing upon the correctness of the ruling. In substance, the facts expected to be established by the absent witness were: That deceased had had serious difficulties with other persons in San Patricio county, and that these other persons were parties likely to take the life of the deceased, should an opportunity for so doing offer. Also that deceased had had a difficulty with one Moore, in which he had killed Moore; that the friends of Moore were much enraged against him, and, living in the adjoining county of Goliad, would, in all probability, avenge the death of their friend and relative; and that the probabilities were that they, or some one of them, and not defendant, were the parties or party who had killed the deceased.

The bill of exceptions shows that on .the trial the defendant endeavored to prove the same facts, or facts of a similar nature and character, but all such testimony was, on objection by the state, excluded by the court. If the action of the court was wrong in any one particular pointed out by the exceptions, it was wrong in all; hence all the questions on the subject can be treated as one. The question has been so repeatedly settled and the reasons given by previous decisions of this court, that it is scarcely necessary to do more than refer to some of the cases. See Boothe v. The State, 4 Texas Ct. App. 217; Cooper v. *23The State, 7 Texas Ct. App. 200; Holt v. The State, 9 Texas Ct. App. 571, and the authorities cited in those cases.

The rule is that such evidence affords no reasonable presumption or inference as to the guilt or innocence of the defendant, and it is generally treated as hearsay or res inter alios acta. Of course the rule has its exceptions, but they can exist only in cases where the evidence is wholly and strictly circumstantial, and where the mind, having nothing positive or definite to rest upon, seeks light and knowledge from every source, however dim, calculated to throw light upon the transaction.

Here we have a different case — a case by no means dependent upon circumstantial evidence alone. We have the defendant with a motive to commit the deed,—the fact that deceased had participated in the killing of his father, and his threatening to kill the deceased to avenge his father’s death. And in addition to these motives and threats, the defendant is shown by the positive testimony of many witnesses to have been bodily present at the time and place where the homicide took place; while there is not the slightest evidence that any of his other enemies were there. More than that, we have the declaration of deceased to his brother just before the killing: “Alley Means is outside there, fixing to shoot me; I am afraid he is going to shoot me right here in the church.” Immediately the deceased goes to the door, where the fatal shots are fired. No one sees the party who does the shooting, it is true, but defendant and his horse, which had been tied or was standing a few feet off, both disappear and are seen no more about the premises after the shooting. Under such circumstances, would not the mind of any sensible, rational being naturally conclude that defendant, and he alone of all the enemies of the deceased, was the party who did commit the deed, if from no other reason from the sole one that he was the only enemy who had *24the then present opportunity to commit, and was the only one in immediate juxtaposition to, the crime? We think so. The case is not one purely of circumstantial evidence, and the court did not err in refusing to permit the testimony offered of the hostility of other parties.

So far as the declarations of the deceased to his brother, to the effect that “Alley Means is outside there, fixing to shoot me; I am afraid he is going to shoot me right here in church,” are concerned, and which were objected to by defendant at the time, they were clearly res gestee, and admissible as original evidence. Cox et als. v. The State, 8 Texas Ct. App. 256.

We propose to notice objections to only two of the paragraphs of the charge of the court to the jury. In the seventh paragraph the jury were told, “you are the exclusive judges of the facts of this case, and of the credibility of the witnesses who have testified before you. If there are conflicts in the evidence, it will be your duty to reconcile them if you can. If you cannot, it will then be your duty to give credit to the statements of the witnesses that you may believe most entitled to belief.” A similar charge was passed upon by us in the case of James Williams from Nueces county, decided at the present term (ante, p. 8), and it was there held that, whilst a court might well pretermit such efforts to aid a jury, since there was no occasion for such aid, as to the manner ■ in which they should pass upon the evidence, still the charge was not obnoxious to the statutory inhibitions, and could not in any perceivable manner have operated materially to the prejudice of the rights of the defendant.

The defense was an alibi. On this defense the jury were instructed, “If from the evidence the jury entertain a reasonable doubt of the presence of the defendant at the place Edward E. Gamer was killed, at the time of the killing (if he was killed), and if they entertain a reasonable doubt that at that time he may not have been *25elsewhere, and at a distance of seven or eight hundred yards distant, at a ranche with his brother, the defendant is entitled to the benefit of that doubt, and the jury should acquit him.”

We do not think that this paragraph is misleading, as is contended by appellant’s counsel, or that it restricts the defense of the alibi to a particular place at the time of the, homicide. Defendant’s theory and his evidence were to the effect that, at the time of the homicide, he was in fact with his brother, attending a fandango some several hundred yards off at a ranche. We cannot see how he can complain that in addition to the charge of the reasonable doubt generally, as to his presence at the time and place of the homicide, the court should also, as was done, charge it with regard to his presence also at the identical place he claimed to have been when the deed was committed. The charge was a fair and full presentation of the law applicable to the facts.

A mature consideration of the facts has left no doubt upon our minds of defendant’s guilt as ascertained and declared by the jury. His crime cannot be characterized as anything less than a cold-blooded, deliberate assassination, committed in the very sanctuary of the Most High, and in the midst of the congregation and services of his people.

The judgment is in all things affirmed.

Affirmed.