¶1It appears by the bill of exceptions that the court overruled the application for continuance because the facts stated therein were insufficient to entitle the defendant to a continuance. The. affidavit did not state that the object was to show that the killing was under a mistake, nor did it otherwise set forth the circumstances of the case sufficient to enable the court to see that . the facts stated were material. It seems to assume that the court was aware of the circumstances of the killing, as afterwards developed on the trial. We think it was in this respect insufficient, and that it was not error to overrule it.
¶2*648Oh the trial it appears to have been established satisfactorily that the defendant shot the deceased, Nelson Seigler, whilst he was riding across a bridge over Oyster creek, shortly before day, supposing that he was a penitentiary convict who had escaped from defendant’s custody on the preceding day. Defendant and one Eobinson were guards over convicts on a plantation in Brazoria county carried on by Ward, Dewey & Go., lessees of the penitentiary, with the labor of convicts. After the escape of the convict they were sent out with instructions, as they claim, from the lessees to shoot the escaped convict if when found and ordered to halt he would not do so. Whilst they were on the bridge deceased rode on to it on a white horse just similar to the one which the escaped convict had been seen by Wright and others riding in that neighborhood “a short time previous.” Being satisfied that he was the convict, one having called to him three times to halt, and he not halting, defendant and Robinson fired on the deceased, killing him. These facts appear by Wright’s own statements voluntarily made; also, that when he fired it was so dark that he could not tell whether it was a white man or a negro on the bridge.
¶3Section 10, art. 2215, Paschal’s Dig., is as follows: “A prisoner under sentence of death or imprisonment in the penitentiary, or attempting to escape from the penitentiary, may be killed by the officer having legal control of him, if his escape can in no other way be prevented.”
¶4The charge of the court recognized the applicability of this statute to convicts at labor on plantations, but held that after the convict had entirely escaped from custody a guard would have “ only such authority to effect a capture as belongs to ordinary peace officers in making arrests,” and that they could “ only take life when it became necessary to do so to protect their own lives or save them from serious bodily harm.” Also; “If the accused intended unlawfully to take the life of another person than the deceased, *649and had reasonable or adequate cause to believe that the deceased was said other person, the offense, if any, is the same as though the one killed were the one whose killing was intended." The charge excluded murder in the first degree from the consideration of the jury, and their verdict was guilty of murder in the second degree, assessing the lowest penalty allowed by the law.
¶5It is contended that the law gives to an officer attempting to re-arrest an escaped convict the same authority to kill in order to prevent his escape from re-arrest that it gives to an officer having legal custody of a convict who is attempting to escape; and it is urged that the reason of the law extends as fully to the one case as the other. The answer is simply that the language of the statute does not admit of such an interpretation.
¶6The appellant appears from the record to have been fairly tried under a correct charge, and to have had the full benefit of the facts to establish which lie sought a continuance.
¶7The judgment is affirmed.
¶8Affirmed.