
    McCOY v. STATE.
    (No. 10482.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    Rehearing Denied May 11, 1927.
    1. Indictment and information <®=>ll(3) — Motion to quash indictment, on which court directed clerk to enter file mark nunc pro tunc at previous term, on showing that indictment was regularly returned, held properly overruled.
    Where it was skown on hearing of motion to quash indictment that it was regularly returned into court, but that clerk failed to place his file mark thereon, which court then directed him to do nunc pro tune, there was no error in overruling motion when renewed at subsequent term.
    2. Criminal law <S=»I83 — Discharging jury with defendant’s consent because of juror’s sickness held not error, and hence plea of former jeopardy was not sustained (Code Cr. Proc. 1925, art. 680).
    Discharging former jury with express consent of defendant and his counsel because of juror’s sickness, as authorized by Code Cr. Proc. 1925, art. 680, held not error, and hence plea of former jeopardy was not sustained.
    3. Criminal law'<s=»296 — Failure to receive evidence on and submit issue of former jeopardy held not error, where plea raised no fact issue.
    Failure to receive evidence on, and submit to jury, issue raised by plea of former jeopardy, held not error, where court properly held that plea- itself raised no issue of fact.
    4. Criminal law <S=>594(I) — Denial of continuance for absent witnesses who appeared on trial held not abuse of discretion. '
    Where absent material witnesses, for whom diligence had been used, appeared on trial, court did not abuse its discretion in denying motion for continuance.
    5. Criminal law <8=>l 129(8) — -Bill of exception to admission of testimony that deceased’s purse was never found and that he always carried it held insufficient, where not showing that defendant did not know of deceased’s custom.
    Bill of exception to admission of testimony, on issue of robbery as motive for murder, that deceased’s purse was never found, and that he always changed it when he changed his clothes, showed no error, where not disclosing whether defendant knew of other facts introduced on such issue or that he did not know of deceased's habits and customs; omission not being supplied by mere recital of ground of objection that it was not shown that defendant knew deceased’s custom.
    6. Criminal law <§=»494(4) — Hat worn by deceased held admissible on issue whether blow was due to horse’s kick or striking with stick by defendant.
    In murder trial, hat w-orn by deceased at time of injury held admissible on issue whether blow was due to kick of horse, which deceased had been feeding, or striking with stick by defendant.
    7. Criminal law <S=» 11791/2(1) — Exclusion of deceased’s son’s testimony as to employing detective, whose wife testified for state, held not error.
    Bill of exception to exclusion of deceased’s son’s testimony that he employed husband of another state’s witness as detective showed no error, where court qualified bill by statement that testimony was later admitted, such detective did not testify, deceased’s son gave no damaging testimony against accused, and court was advised that testimony was desired to show wife’s animus, not to discredit deceased’s son.
    8. Homicide <©=>166(19) — Testimony as to paying deceased monthly held inadmissible on issue of robbery as motive for murder until shown that defendant had knowledge thereof (Vernon’s Ann. Civ. St. 1925, art. 2237; Vernon’s Ann. Code Cr. Proo. 1925, art. 667).
    In murder trial, testimony of deceased’s son, on issue of robbery as motive, that he paid off deceased the 1st of every month, was inadmissible until shown that defendant had knowledge thereof, in view of Vernon’s Ann. Civ. St. 1925. art. 2237, and Vernon’s Ann. Code Cr. Proc. 1925, art. 667.
    9. Criminal law <§=»l I44( 12)— In absence of showing that circumstances rendered it inadmissible, it must be presumed -that testimony indicating murder in committing robbery was properly received.
    In absence of showing in bills of exceptions to admission of testimony as to deceased’s eus-tom of carrying purse, its absence when he was found after injury, and witness’ settlement with him monthly, that 'peculiar circumstances rendered testimony inadmissible to show motive or rebut theory that deceased was injured by kick of horse, presumption must be indulged that it was properly received.
    10. Witnesses <§=3262 — Permitting state to recall witness after closing evidence in chief held not error in absence of showing of abuse of discretion.
    Permitting state to recall witness, after, closing its evidence in chief and before defendant finished introduction of his testimony, held not error, in absence of showing of abuse of trial court’s discretion.
    11. Criminal law <©=>684 — Allowing state .to introduce rebuttal evidence admissible in chief held not error, in absence of showing of abuse of discretion (Code Cr. Proc. 1925; art. 642).
    Allowing state to introduce rebuttal evidence, which could have been introduced in opening case, held not error, in absence of showing of abuse of discretion under Code Cr. Proc. 1925, art. 642.
    12. Criminal law <©=3419, 420(12), 662(4)— Hospital record held admissible as against objections that defendant had.right to be confronted with witnesses against him and; that entry was hearsay because made by another than witness testifying to it.
    In murder trial, hospital record, showing that one whom defendant claimed to have taken to hospital outside state on night before day of homicide was admitted on night after homicide held admissible, as against objections that defendant had right to be confronted with witnesses against him, that hospital superintendent, who testified as to entry, stated that he did not make it and was not custodian of record, and that entry was hearsay because made by another.
    13. Criminal law <©=>419,420(12) — Regular entries in books of record are admissible under exception to hearsay evidence rule.
    One exception to rule excluding hearsay testimony is that sanctioning receipt in evidence of regular entries in books of record.
    14. Criminal law <§=3434 — Entries in books should be made contemporaneously in course or as part of system to be admissible.
    To authorize receipt in evidence of entries in books of record, they should be made contemporaneously in course or as part of system of entries.
    15. Criminai law.<§=3400(8) — Making of book entry as part of system should be proved by best evidence available, but may be proved by another if entrant is absent from jurisdiction.
    That entry in book of record was made contemporaneously in course or as part of system of entries should be proved by best evidence available before admitting it in evidence, but if entrant is absent from court’s jurisdiction, proof may be made by another.
    16. Criminal law <§=>434 — Habit of person, other than public officer, to make accurate book entries, sought to be introduced in evidence, should be proved.
    Where person who made book entries, sought to be introduced in evidence, is not available as witness, his habit and custom to make proper and accurate entries should be proved, unless entry was made by public officer pursuant to his duty as such, in which case such proof is supplied by presumption in favor of regularity of his acts.
    17. Criminal law <§=>429(0 — Admission of state hospital record, made by interne, held not error, whether public or not, in absence of objection or failure to prove habit of making accurate entries.
    In murder trial, admission of state hospital record showing that patient, whom defendant claimed to have taken to hospital some distance from place of homicide on night before, was admitted on night following, homicide, held not error; proof that record was made by interne charged with such duty being sufficient predicate, if record was public one, and there being no objection on ground of absence of proof of his habit of m'aking accurate entries, if not public.
    18. Criminal law <§=>572 — Evidence in murder trial held insufficient to establish alibi.
    In murder trial, evidence held insufficient to establish defense of alibi.
    19. Criminal law <§=>445 — Examined copy of entry in hospital record, which superintendent took with him after identifying entry, held admissible.
    Examined copy of entry in state hospital record, which superintendent insisted on taking with him after identifying entry, held admissible in lieu of original.
    20. Criminal law <§=>1091 (4) — Bills of exception ' respecting testimony as to affidavit, contents of which are not revealed, cannot be considered.
    Bills of exception, referring to testimony as to affidavit, contents of which bills failed to reveal, cannot be considered.
    On Motion for Rehearing.
    21. Indictment and information <§=>( I (3) — Record may be amended at subsequent term to show presentment of - indictment (Code Cr. Proc. 1925, art. 394).
    On proper showing, record may be amended, even at subsequent term of court, to show presentment of indictment as required by Code Cr. Proc. 1925, art. 394.
    22. Criminal law <§=>l 111 (3) — Trial court’s statement in explanation to bill of exceptions must be accepted as correct and showing amendment of record authorized by evidence, in absence of proper bill bringing up evidence and order.
    In absence of proper bill of exceptions, bringing before appellate court evidence and order thereon amending record to show presentment of indictment at previous terpi, court must accept trial court’s statement in explanation to bill as correct and showing that evidence before him authorized amendment, and must presume that order effected desired amendment.
    23. Criminal law <&wkey;!83 — Recital of defendant’s agreement to discharge of jury rendered former jeopardy plea insufficient on face, notwithstanding averment that he had no opportunity to confer with counsel nor knowledge of its import or gravity.
    Recital, in plea of former jeopardy, that defendant agreed to discharge of former jury, rendered plea insufficient on its face, and authorized refusal to submit it to jury, notwithstanding averment that defendant gave consent without having opportunity to discuss matter with counsel and without knowledge of import or gravity of agreement.
    24. Criminal law <&wkey;l 170'/2(I) — Exclusion of deceased’s son’s testimony that he employed state witness’ husband as detective held not reversible error.
    In murder trial, refusal to permit defendant to prove by deceased’s son that latter employed husband of state’s witness as detective held, not reversible error, where bill did not show that defendant expected to prove that detective’s compensation was contingent on conviction to wife’s knowledge, and she testified that she married him long after killing and did not know that he was employed as detective or interested in prosecution.
    25. Criminal law <&wkey;l092(l I)— On objection to qualification of bill of exceptions presented, court properly prepared bill in lieu thereof.
    On objection to court’s qualification of bill of exceptions prepared by defendant, court properly prepared bill in lieu of one presented.
    26. Criminal law <&wkey;l 111 (3) — Appellate court is controlled by recitals of court’s bill of exceptions, in absence of bystanders’ bill.
    In absence of bystanders’ bill of exceptions controverting bill prepared by court on objection to qualification of bill presented, appellate court is controlled by recitals of court’s bill.
    27. Criminal law <&wkey;614(2) — Second application for continuance for absence of witnesses, whos'e testimony was supplied by others or became immaterial or cumulative, held properly overruled.
    Second application for continuance for absence of witnesses, testimony of some of whom was supplied by others, while that of others became immaterial or cumulative in development of ease, held properly overruled.
    28. Criminal law <&wkey;74l (I), 742(1) — Witnesses’ credibility and weight of testimony is for jury.
    Determination of witnesses’ credit and weight to be given their testimony is jury’s province.
    29. Criminal law <&wkey;1159(3) — Jury’s verdict on conflicting testimony cannot be overturned where justified by evidence in record.
    Appellate court cannot overturn jury’s verdict on conflicting testimony, where justified by evidence in record.
    30.Criminal law <&wkey;554 — Jury may accept as true incriminating evidence against defendant, though denied or assailed by him.
    Appellate court cannot say that'jury was wrong in accepting as true incriminating evidence against defendant because denied or assailed by him.
    Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    Cus McCoy was convicted of murder, and he appeals.
    Affirmed.
    E. B. Lewis, of Center, and J. M. Singleton, of Jefferson, for appellant.
    P. G. Henderson and J. H. Benefield, both of Jefferson, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

Early in the morning of Monday the 28th of July, 1924, J. W. Rowell, Sr., a man of about 90 years of age, while out in his lot, received blows upon the head which rendered him unconscious, in which condition he remained until his death, which soon followed from the effect of the blows. The state took the position that the appellant was the .offender and that the motive was robbery. Appellant interposed the.defense of alibi, claiming to have been in the town of Shreveport, La., at the time the deceased was injured.

Prom bill No. 1, as qualified, it appears that at the previous term of court a motion to quash the indictment was made upon the ground that there was no indictment re^ turned. Upon the hearing of the motion it was shown that the indictment was regularly returned into court, but that the clerk failed to place his file mark upon it. The court overruled the motion and directed that the clerk enter his file mark nunc pro tunc. There was no error in overruling the motion when it was renewed upon the present hearing. Cauthern v. State (Tex. Cr. App.) 65 S. W. 96; Skinner v. State, 64 Tex. Cr. R. 84, 141 S. W. 231.

Appellant interposed the plea of former jeopardy, based upon the ground that the court, on a former occasion, after impaneling the jury and the plea had been entered, had discharged the jury on account of the sickness of one of the jurors. This is authorized under certain circumstances by article 680, C. C. P. 1925, and from the bill it appears that the juror was sick and that his discharge was with the express consent of both appellant and his counsel. Therefore, no error is shown. Arcia v. State, 28 Tex. App. 198, 12 S. W. 599; Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188; Torres v. State, 91 Tex. Cr. R. 387, 238 S. W. 928.

The complaints in bills Nos. 10 and 11 of the failure to receive certain evidence and to submit the issue raised by the plea of former jeopardy to the jury show no error, for the reason that the court properly held that the plea itself raised no issue of fact. '

An application for a continuance was made and overruled, as shown by bill No. 3. Apparently it was a subsequent application. As qualified, the bill shows that such material witnesses as were absent and for whom diligence had been used appeared upon the trial. According to the hill as qualified, the court did not abuse its discretion in refusing to grant the motion.

It appears from bill No. 4 that state’s counsel asked the witness T. D. Rowell the following question:

“State whether or not you know that purse had been found.”

The witness answered:

“No sir; it was never found. He always changed his purse when he changed his clothes, and when he would go out to work and change his clothes he would change his purse, and when he changed back he would change his purse because he always had ne-groes around and he always changed his purse.”

Objection to this question and answer was made upon the ground that it was not admissible unless it was shown that appellant knew the custom of the deceased. In qualifying' the hill the court stated that it was received -in connection with other evidence upon the issue of robbery as tlie motive for the offense. The bill is quite meager, and, as qualified, shows no error. It fails to give any of the surrounding facts such as would enable the court to determine its.merits. Especially is this true from the accepted statement in the qualification that there were other facts introduced on the issue of motive. Nothing in the bill discloses whether the appellant was acquainted with the other facts or what they were, nor does it appear that the appellant ffiid not know of the habits and customs of the deceased. This omission is not supplied by the mere recital of the ground of objection. Some further remarks on the, subject are made in the discussion of bill No. 7.

From bill No. 5, as qualified, it appears that for- many years it had been the custom of the deceased to go to the barn very early every morning to feed his horse; that he was found early in the morning coming from the direction of his lot, wounded and unconscious. The bucket in his hand was crushed and his fingers bruised, and upon the side of his head there were deep wounds. The condition of the bucket and his hand indicated an effort to ward off the blows.’ From some of the testimony the suggestion came that his injury was due to a kick of the horse. It was the theory of the state that the wound was inflicted, by a stick in the hands of the appellant. At the barn was found a long stick with bloodstains upon it. The hat worn by the deceased at the time of his injury was exhibited to the jury over the objection of the appellant. The hat was without blood stains, but its condition was such as, in the opinion of the learned trial judge, tended to solve the controverted issue mentioned, namely, whether the blow was due to a kick of the horse or the striking with a stick by the appellant. It is well settled that under such circumstances the testimony mentioned was not. improperly received, gee Branch’s Ann. Tex. P. C. § 1855, and the precedents cited; also Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782.

It appears from bill No. 6 that, while T. D. Rowell was testifying in behalf of the state, he was asked on cross-examination by appellant’s counsel, the following:

“Q. Do you know a party named G. W. Roberts? A. Yes, sir.
“Q. Isn’t it a fact that you had employed him as a detective?”

The objection to this question was sustained. According to the bill, the witness would have given an affirmative answer and would have stated that Roberts had been active in the prosecution. From the bill it appears that appellant contended that the materiality of this testimony consisted in the fact that Roberts’ wife had given testimony favorable to the state and that the answer expected would have borne upon the animus of the wife of Roberts. In qualifying the bill, the court said that he believed the testimony was later admitted on the trial. This qualification would seem to nullify the bill, if it otherwise had merit. However, it appears that Roberts was not a witness in the ease. Moreover, the procedure of the nature mentioned is of doubtful validity. If Roberts had testified or his wife had testified, the inquiry of either might with propriety have been made. So far as the record shows, the inquiry might have been available as bearing upon the animus of the witness Rowell. However, the bill fails to show that he gave any damaging testimony against the accused, and, further, it affirmatively appears that the court was advised that the testimony was desired for a different purpose and not to discredit the witness Rowell. As the matter is here, we think it shows no error, at least, no material or hurtful error.

From bill No. 7 upon the subject of the custom of the deceased, it appears that the witness named above was asked by state’s counsel:

“Q. Do you know anything about your father collecting money? A. Yes, sir; I do.
“Q. How did he do it? A. Well, I settled with him on the 1st of every month. I paid he and myself off the first.”

Objection was made upon the ground that it was wholly immaterial. This was not admissible until it was shown that the appellant had knowledge of it. The remarks touching bill No. 4 are also pertinent to this one. See Murff v. State (Tex. Cr. App.) 281 S. W. 1077; Coulson v. State, 102 Tex. Cr. R. 8, 277 S. W. 135; Baxter v. State, 81 Tex. Cr. R. 234, 194 S. W. 1107; article 2237, Vernon’s Rev. Civ. Stat. 1925; article 667, Vernon’s Tex. C. C. P. vol. 2, p. 364, note 23. Besides, the fact that it was the custom of the deceased to possess money and carry his purse in his pocket, and its absence at the time he was found after the injury might, under some circumstances, have been very cogent testimony upon the issue suggested in the qualification of bill No. 4. See Moehler v. State, 98 Tex. Cr. R. 238, 265 S. W. 553; Level v. State, 93 Tex. Cr. R. 615, 248 S. W. 349. Apparently it was admissible as tending to rebut the theory that the deceased was injured by the kick of a horse. In the absence of something in the bills showing that the peculiar circumstances were such as to render the testimony inadmissible, the presumption must be indulged that it was properly received. See Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777; Nowells v. State, 100 Tex. Cr. R. 476, 273 S. W. 561; Dover v. State, 102 Tex. Cr. R. 121, 277 S. W. 675.

Bill No. 8, complaining that the court permitted the recall of a witness after the state had closed its evidence in chief and before the appellant had finished with the introduction of his testimony, shows no error. This was within the discretion of the trial court, and the bill shows no abuse of it. The same may be said of the complaint in bill No. 13 of allowing the state to introduce in rebuttal evidence which could have been introduced in opening the case. Article 642, C. C. P., 1925; Barnard v. State, 87 Tex. Cr. R. 365, 221 S. W. 293; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548; Johns v. State, 98 Tex. Cr. R. 127, 263 S. W. 313.

According to hill No. 9, in support of his theory of alibi, appellant claimed to have assisted in taking Annie May Smothers to the Charity Hospital in Shreveport, La., for treatment on Sunday night preceding the homicide on Monday following. The state introduced Dr. J. M. Moseley, and exhibited to him what purported to be a record of the Charity Hospital of Shreveport, containing an entry to the effect that “Annie May Smothers came into the hospital at Shreveport, La., at 10 o’clock p. m., July 28, 1924,” which was Monday night. As a predicate for the introduction of this record, Dr. Moseley testified that the record was made by Dr. Workhouse, who was at that time working at the Charity Hospital as an interne, and that it was his duty to make a record of the date that every patient entered the institution, giving the name of the patient and the injuries or disease complained of. He testified that the entry was in the handwriting of Dr. Workhouse with which the witness ■ was familiar, and that Dr. Workhouse was not, at the time of the trial, in the employ of the hospital mentioned, but resided in the state of Mississippi; that the making of such entries was required of Dr. Wdrkhouse. The witness said that, at the time the entry was made and at the time of the present trial, he was superintendent of the Charity Hospital at Shreveport, La., and controlled the records thereof; that the Charity Hospital was a state institution. To the introduction of the part of the record mentioned, the appellant objected, for the following reasons:

“Because the defendant should have the right to b? confronted with the witnesses against him and because the witness testified that he did not make the record offered in evidence, and was not custodian of the record. And further because that the record entry is hearsay, having been made by some other person than the witness.”

We think the testirhony was not subject to the objections addressed to it. One of the exceptions to the rule excluding hearsay testimony is that which sanctions the receipt in evidence of “regular entries in books of record.” Wigmore qn-Evidence, vol. 2, §§ 1521-1533. To entitle its receipt in evidence, the entry should be regular; that is, it should be made in the course or a part of a system of entries and'not a casual or isolated one, and it should be contemporaneous. See, also, Wigmore on Ev. vol. 3, §§ 1647-1650. Proof of the predicate should be made by the best evidence available, but, if the entrant is absent from the jurisdiction of the court; the proof may be made by another. See Wigmore on Ev. vol. 2, § 1521; also Leach v. State, 80 Tex. Cr. R. 376, 189 S. W. 733. An entry made by a public officer in pursuance of his duty may be likewise received. Wigmore on Ev. vol. 3, § 1632. As a predicate for the introduction of the entry as above defined, where the person who made it is not available as a witness, it should be proved that it was the habit and custom of the entrant to make proper and accurate entries. If, however, the entry was made by a public officer in the pursuance of his duty as such, proof of habit or custom is not essential, but to be supplied by the presumption in favor of the regularity of the acts of public officers. The hospital was a state institution, and it was the duty of the entrant to make a true entry of the name and date that each patient was received therein. In the bill there is no objection upon the ground of an absence of proof of the habit or custom of Dr. Workhouse to make proper and accurate entries. If the record was a public one, the predicate was sufficient; but, if not a public record, the court was not in error in rerusing to sustain the objections made; there being no objection upon the ground of the absence of proof of habit or custom, that objection is not available on appeal.

Both the deceased and appellant resided in the town of Jefferson, the county seat of Marion county. Marion is a border county adjoining Louisiana. The distance from Jefferson to Shreveport, La., is not, so far as we have discovered, definitely stated. However, it does appear from the testimony that they were connected by rail and by road traversed by automobiles. Appellant had lived'all his life in Jefferson. According to his testimony, he came from Shreveport to Jefferson on Thursday night preceding the homicide on Monday morning. After spending the night and part of the following day with Louis Stephens, they went to Shreveport, traveling partly on foot and partly by catching rides in automobiles and on freight trains, reaching Shreveport about 7 o'clock, on Friday evening. In his testimony he described his movements and those of his companion in Shreveport, asserting that on Sunday night he 'assisted in taking Annie May Smothers to the Charity Hospital. Witnesses for the state testified that he was seen in Jefferson on the morning on which the homi- • cide took place. The entry on the record of the Charity Hospital to the effect that Annie May Smothers become an inmate of the hospital at 10 o’clock at night of the 28th of July, is in conflict with the appellant’s theory to the extent that the hospital entry appears' to have been made on Monday night, and he claims that the woman was taken to the hospital on Sunday night. It seems obvious that the entry on the hospital record is not necessarily incompatible with the appellant’s presence at Jefferson at the time of the homicide. Apparently the distance between Jefferson and Shreveport is not such as to preclude his presence at Shreveport on Sunday night at 10 o’clock and at Jefferson at Monday morning at 5 o’clock; nor does it preclude his presence at Jefferson on Monday morning and at Shreveport on Monday night. As stated above, there is much other testimony combating the appellant’s theory of alibi, including the testimony of two witnesses to the effect that appellant admitted that he struck the deceased; nor is the hospital record the only evidence that Annie May Smothers entered the hospital on Monday night. The police records introduced in evidence and the testimony of the arresting officers are to the same effect.

According to bill No. 14, after Dr. Moseley had testified as shown in bill of ex•ceptions No. 9, identifying the entry in the record of the Oharity Hospital of Shreveport, La., the court was not ready to rule on the admissibility of the entry mentioned in bill No. 9. The witness, who resided in Louisiana,- insisted on returning and taking with him the record which he said was a public record. Under the court’s direction and with the aid of counsel and witness, an examined copy of the entry was made. The witness took the original record with him, leaving the examined copy. The complaint of the use of the latter in lieu of the original when the court finally ruled the entry admissible in bill No. 14 is deemed not well founded. Greenleaf on Evidence, § 91; Wigmore on Evidence, vol. 2, § 1273; Starkey on Evidence, vol. 1, § 189.

Bill No. 15, complaining of the alleged improper argument, as qualified, shows no error.

Bills Nos. 16 and 17 refer to the testimony of the witness Allen touching a certain affidavit made against him, the contents of which affidavit the bills fail to reveal.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention that he was insisting on the quashal of the indictment, not only on the ground that it bore no file mark, but also because the court’s minutes failed to show its proper presentment, thereby failing to comply with article 394, C. C. P. The bill of exception complaining of the court’s refusal ta quash the indictment bears the following explanation from the trial judge:

“At a previous term of court the same motion was made to quash, and it was ascertained from the testimony of the clerk that the indictment had been properly returned by the grand jury at that time and received by me in open court and delivered to him by me on December 9, 1924, but no file mark had been placed on it, and had been in his possession since then all the time, and defendant was served with a copy on December 11, 1924. The clerk also testified. that the grand jury appeared with a quorum present and returned the indictment in open court through their foreman. All this proof was made upon the motion to quash the indictment, and I directed the clerk to file the indictment of the 9th of December, 1924, and directed the district attorney at the time to prepare an order showing that the indictment had been presented, but this order was never prepared nor entered at that term. When the motion to quash was again presented, the same proof was offered as at the previous term, and I again overruled the motion and directed the prosecuting attorney to prepare the order, which was done, and the record at this time contains an order showing the presentment of the indictment at the previous term of court.”

Upon a proper showing, even at a subsequent term of court the record may be amended so as to show the presentment of the indictment. Burnett v. State, 14 Tex. 456, 65 Am. Dec. 131; Rhodes v. State, 29 Tex. 188; Denton v. State, 3 Tex. App. 635; Townsend v. State, 5 Tex. App. 574; Cox v. State, 7 Tex. App. 495; De Olles v. State, 20 Tex. App. 145; Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133; Tyson v. State, 14 Tex. App. 388. While Loggins v. State, 8 Tex. App. 434, is not upon the exact point, the observations of the court found therein are interesting. The record in the present ease seems to have been amended in the manner indicated as proper by the foregoing authorities. We must accept the statement of the court in his explanation to the bill as correct and as showing that the evidence before him authorized his act, and must also presume the order entered effected the desired amendment. If the sufficiency of the evidence to authorize the act is questioned by appellant or the sufficiency of the amended record is challenged, the burden is on appellant to bring the evidence and order before this court by proper bill before those questions could be reviewed.

Appellant renews his contention that the court committed error in not submitting to the jury his plea of former jeopardy. The plea shows upon its face that the former jury was discharged with appellant’s consent, the only effort ¡seeking to avoid the effect of such consent -being an averment that appellant gave his consent without having an opportunity to discuss-the matter with, his counsel and without knowledge of the import or gravity of the agreement. We think the recital in the plea that appellant agreed to the discharge of the jury renders the plea insufficient on its face and authorized the court to decline to submit it to the jury.

Appellant insists with much earnestness that the failure of the court to permit him to prove by T. I>. Rowell, a son of deceased, that he had employed one G. W. Roberts as a detective was such error as demands a reversal. As stated in the original opinion, appellant makes no contention that he desired this evidence as in any way affecting the testimony of the witness Rowell, but the bill expressly shows that he was insisting on it as affecting the testimony of. Roberta Roberts, the wife of G. W. Roberts. The latter did not testify. Roberta did give damaging evidence against appellant. If the bill had shown that appellant expected to prove that compensation to her husband for his work in the case was based on the- contingency of a conviction, and it appeared that the wife was aware of this fact, there would appear some merit in appellant’s contention, but the bill does not so show. Roberta’s evidence is to the effect that she married Roberts at the last term of court, long after the killing of deceased, and she testified, if her husband was employed as a detective, or was in any other way- interested in the prosecution, she had no knowledge of it. With the record in this condition, we do not feel authorized in holding that the ruling of the court in the matter complained of was such an error as calls for a reversal. The effect’ of the evidence expected depends on too much speculation and too many contingencies to justify such conclusion.

We have again examined the bill of exception complaining of the court’s action in overruling appellant’s application for continuance. The bill as originally prepared by appellant was qualified by the court. Objection having been made to the qualification, the court very properly prepared a bill in lieu of the one presented to him. In the absence of a bystanders’ bill controverting the one prepared by the court, we are controlled by the recitals in that bill. It appears therefrom that the application for continuance was appellant’s second application, and tha-t the testimony of some of the absent witnesses was supplied by others who were present and the proposed testimony of other absent witnesses became immaterial or cumulative in the development of the ease.

Appellant ■ renews other questions in his motion for rehearing. None of them has been overlooked. One relates to the admission in evidence of certain entries on the hospital records in Shreveport. This point had our most careful consideration on the original submission, and nothing could be added to what was said in disposing of it in our former opinion. We think the question was there properly decided.

We have again, at the suggestion of appellant, re-examined the evidence. The case is one of conflicting testimony, demanding the determination of the credit of witnesses and the weight to be given their testimony. This province is properly lodged with the jury. They have solved the conflicts in favor of the state. This court is in no position to overturn their judgment in the matter. We cannot say the jury was wrong in accepting as true incriminating evidence against appellant because it was denied or assailed by him. The evidence in the record, if true, justified the verdict.

We commend the attorneys who were appointed by the court to defend this unfortunate appellant for their zeal in his interest. Realizing their obligations to him under the court’s appointment, they have overlooked nothing which could be ‘properly interposed in his behalf. We have been unable to agree with them in their contentions, and,'believing the ease to have been properly disposed of in the affirmance of the judgment, the motion for rehearing is overruled.

MORROW, P. J., not sitting. 
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