On the 10th day of January, 1876, the indictment in this case was returned into court, charging appellant with the murder of one J. B. Scobee, in Milam county, on the 7 th day of May, 1874. He was brought to trial on the 17th day of May, 1881, and on the 21st a verdict was returned against him for murder in the second degree and affixing “his punishment at fifteen years in the penitentiary.”

An application for continuance was made by defendant, *616which was controverted as to diligence by the district attorney, supported by affidavits as provided by statute. Code Crim. Proc. art. 564. This application was overruled by the court, and this ruling having been duly reserved by bill of exceptions is the first error complained of. Even a first application, though in conformity with the requirements of the statute, is now no longer a matter of right, but its truth and merits are addressed to the, sound discretion of the trial court, and if then overruled will be considered by that court again on the motion for new trial, in connection with the other evidence in the case. Code Crim. Proc. art. 560, subdivision 6th. In passing upon the refusal of a continuance asked on account of the absence of a witness, the evidence adduced on the trial is likewise considered by this court for the purpose of determining whether the desired testimony was probably true, as well as whether it was material if true. Dowdy v. State, 9 Texas Ct. App. 292; Sheckles v. State, 9 Texas Ct. App. 326; Lyons v. State, 9 Texas Ct. App. 636. It is hardly probable, if the absent witnesses Hurt and Joe Aiken had testified to the proposed facts stated in the application, that such testimony would have been true when so much other testimony is exhibited directly contradicting it, not the least important of which testimony was more than one voluntary statement made by defendant himself, that he was the party who did the shooting. If the other witness, Davidson, had been present, his testimony that Black Crunk, who had since died, had admitted to witness that he, Crunk, had fired the fatal shot would not only have been wanting in probability of truth, but would have been hearsay and inadmissible as evidence. “On an indictment for murder, the admissions of other persons that they killed the deceased, or committed the crime in controversy, are not evidence.” Whart. Crim. Ev. sec. 225; Sharp v. State, 6 Texas Ct. App. 650; Boothe v. State, 4 Texas Ct. App. *617202; Krebs v. State, 8 Texas Ct. App. 1; Means v. State, ante, p. 16. There is no testimony going to show that Crunk was at or near the scene of the shooting at the time it occurred. Nor did the court err in refusing to allow the witness Smith to testify to these same facts on the trial.

• It is no longer a question in this State that flight and the attendant circumstances are legitimate matters for the consideration of the jury in connection with the other inculpatory evidence. Gose v. State, 6 Texas Ct. App. 121; Blake v. State, 3 Texas Ct. App. 581; 58 Ala. 335. The fact that defendant was arrested in Arkansas and brought back for trial brings the point directly within Blake’s case, supra. There was no error in permitting the introduction of the testimony.

Quité a number of objections are urged to the charge of the court, but upon a careful consideration we fail to see that they are tenable. Only one is deemed necessary of notice. It is said that the charge is insufficient in that it did not submit the law of negligent homicide. As shown by the evidence, the case was not and could not be one of negligent homicide, which can only be predicated upon facts showing “no apparent intention to kill.” Penal Code, art. 584; Robbins v. State, 9 Texas Ct. App. 666.

It is true that malice is the essential ingredient of murder, but the principle is elementary that “this specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind; as when a man resolves to kill the next man he meets and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. 4 Black. Com. 200. In such a case it may well be said that he has malevolence towards the particular person killed, because he was one within the general scope of his malignity.” McCoy v. State, 25 Texas, 33; Lopez v. State, 2 Texas Ct. App. 204.

*618Mr. Wharton says “Where an action unlawful in itself is done with deliberation and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately, fall where it may, and death ensue against or beside the original intention of the party, it will be murder.” 2 Whart. Crim. L. (6th ed.) sec. 967. It is expressly provided by our statute that “the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.” Penal Code, art. 50. And, as was said by Oh. J. Roberts in McCoy’s case, “ a man is always presumed to intend that which is the necessary or even probable consequence of his acts, unless the contrary appears.” 25 Texas, 42.

Appellant, according to the evidence, fired his pistol into the window of a passenger car of a railroad train in which, it is also shown, he must have known and did know there were passengers. Deceased was struck in the neck by the ball, and died in a day or two thereafter from the effects. A more reckless disregard of human life was never shown and can scarcely be imagined, and the dastardly act under the circumstances developed is and could be in law nothing short of murder. We have found no error in the proceedings which resulted in his conviction of murder of the second degree; and the judgment assessing his punishment at fifteen years’ imprisonment in the State penitentiary is in all things affirmed.

Affirmed.