
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1912.
    On Motion for RehearingMarch 13, 1912.)
    1. Homicide (§ 166) — Evidence—Motive.
    In a prosecution for homicide, where it appeared that accused and his father and brother had been indicted for the murder of deceased’s relatives, and that deceased had testified against the father, who was convicted, certified copies of the indictment and conviction of the father were admissible in evidence against the accused to show motive.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 320-331; Dee. Dig. § 166.s]
    2. Homicide (§ 166) — Evidence—Motive.
    Where, many years before, accused and his father and brother had been indicted for the murder of deceased’s relatives, and deceased had testified against the father, who was convicted, evidence that deceased was the only eyewitness of the killing and that one of accused’s brothers was killed while attempting to deliver poison to the father so that he might escape, execution was admissible, tending to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig..§§ 320-331; Dec. Dig. § 166.]
    3. Criminal Law (§ 543) — Triait—Reception of Evidence — Right to Confront Witness — Testimony at Former Trial.
    Proof that a witness who had testified at a former trial was without the state, living in another jurisdiction, and that a few days before trial she had written the district attorney that she could not attend because she was quarantined, nursing .her only daughter who had an infectious disease, was a sufficient predicate for the introduction of the testimony of the witness taken at the former trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    4. Criminal Law (§ 543) — Trial—Reception op Evidence — Confrontation.
    If beyond the jurisdiction, evidence of a witness, given at a former trial in which accused had the opportunity to cross-examine, is admissible at a subsequent trial.
    [Ed. iSTote. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    5. Homicide (§ 170) — Evidence—Admissibility.
    Evidence that the sheriff, after obtaining from deceased’s wife a description of the man who did the killing, traced the horse of the slayer for some distance was admissible where the horse was recognized by many people and described by deceased’s wife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. § 170; Criminal Law, Cent. Dig. § 768.]
    6. Witnesses (§ 395) — Impeachment — Rebuttal.
    Where the deceased’s wife was impeached by proof of her contradictory statements regarding the description of the slayer, her credibility might be sustained by proof of consistent description.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    7. Criminal Law (§ 721) — Trial —Arguments of Counsel.
    A statement by the district attorney that she (meaning the wife of the deceased) knows better than any other person except accused that he was the man who killed her husband is not, taken alone, a reference to the failure of accused to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    8. Criminal Law (§ 1037) — Trial—Arguments of Counsel — Special Charge.
    Improper argument of counsel is no ground for reversal where accused fails to request a charge that the jury should not consider it.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    9. Criminal Law (§ 673) — Trial—Instructions.
    Where the state introduced an indictment presented against accused and his father for murdering relatives of deceased and the judgment of conviction of the father, and accused offered in evidence a copy of his acquittal, it was not error to refuse to charge that such evidence was admissible only to show motive, as the evidence could not be used for any other-purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dee. Dig. § 673.]
    10. Criminal Law (§ 1186) — Appeal — Harmless Error.
    Where the charge required the jury to believe beyond a reasonable doubt that accused killed deceased, and the jury were also charged on alibi, the refusal of the court to charge that if another killed deceased they should acquit was no ground for reversal under Code Cr. Proc. 1895, art. 723, providing that harmless errors shall be disregarded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3230; Dec. Dig. § 1186.]
    11. Homicide (§ 174) —Evidence—Admissibility.
    Where deceased’s wife had described the slayer the evening of the killing, a witness’ testimony that he received that description and began to track a man who fitted that description is admissible, particularly where the credibility of the wife is impeached by proof of inconsistent statements.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    12. Homicide (§§ 22, 308) — Murder — Mtjb-deb in the Fibst Degree.
    Where it appeared that accused had, about nightfall, walked into deceased’s house and shot and instantly killed him because of an old grudge, the crime was murder in the first degree and instructions on murder in the second degree were properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 35-38, 642-648; Dee. Dig. §§ 22, 308.]
    13. Criminal Law (§ 784) — Trial —Instructions — Circumstantial Evidence.
    Where there was positive evidence that accused committed the homicide, the court’s failure to charge on circumstantial evidence was not erroneous, though there was much circumstantial evidence in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888,1922, 1960; Dec. Dig. § 784.]
    14. Criminal Law (§ 1035) — Appeal—Objections Not Raised Below.
    Where accused did not at the time except to the act of the court in questioning witnesses, he cannot complain on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2633-2638, 2643, 2644; Dec. Dig. § 1035.]
    15. Criminal Law (§ 1166%) —Appeal — Harmless Error.
    The action of the trial court in propounding questions to witnesses so as to make their statements clear and intelligible is harmless, though erroneous, when the questions are not put in the manner of a partisan.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3125; Dec. Dig. § 1166%.]
    16. Criminal Law (§ 656) — Trial—Examination op Witnesses.
    Except when necessary to enable the trial judge to make an intelligent ruling he should not, when evidence is being detailed before the jury, propound questions to witnesses.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1524r-1533; Dec. Dig. § 656.]
    17. Criminal Law (§ 741) —Trial—Province op Jury.
    The credibility of witnesses and the weight to be given theif testimony are questions for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1716, 1717, 1727, 1728; Dee. Dig. § 741.]
    18. Homicide (§ 250) — Prosecution — Evidence— Suppiciency.
    Evidence 'held to support a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    On Motion for Rehearing.
    19. Criminal Law (§ 673) — Evidence—Motive and Intent.
    The proof of accused’s motive and intent in committing the crime is part of the main issue and is not an extraneous matter, and testimony in relation thereto should not be limited.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    20. Criminal Law (§ 772) — Trial—Instructions — Applicability to Issues.
    The court should, in its instruction, furnish the jury with the appropriate rules of law as to all the issues or defenses raised by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    21. Criminal Law (§ 1186) — Appeal—Harmless Error.
    In view of Code Cr. Proe. 1895, art. 723, as amended by Acts 25th Leg. c. 21, providing that the judgment shall not be reversed for harmless error, the failure to instruct upon matters of defense raised by evidence so trivial that it cannot be supposed to have been considered by the jury is no ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3230; Dec. Dig. " 1186.]
    22. Criminal Law (§ 922) — Objection — Presentation op 'Grounds op Review in Court Below.
    Under Code Cr. Proc. 1895, art. 723, as amended by Acts 25th Leg. e. 21, providing that the judgment shall not be reversed unless the error shall have been excepted to at the time of trial or on motion for new trial, objections to the charge of the court may be raised for the first time on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    23. Witnesses (§ 395) — Impeachment — Inconsistent Statements.
    Where the deceased’s wife was impeached by proof of her inconsistent descriptions of the slayer, proof of descriptions of the slayer made a fortnight after the killing was admissible to sustain her credibility, the remoteness going to the weight rather than the admissibility of the evidence.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    Appeal from District Court, Cherokee County; James I. Perkins, Judge.
    Bill Mitchell was convicted of murder, and appeals.
    Affirmed.
    Carter & Walker, L. D. Guinn, and F. H. Chandler, for appellant. W. B. O’Quinn, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

In August, 1907, the grand jury of Shelby county duly indicted appellant for the murder of Jas. M. Truitt, alleged to have occurred on or about July 20, 1886. It seems he was first tried in September, 1907, and then in March, 1908, in the district court of said county, both trials resulting in a hung jury. Thereafter the venue of the case was properly changed from Shelby to Cherokee county where a trial again occurred in December, 1910, when he was convicted of murder in the first degree and given a life term in the penitentiary.

The statement of facts is very lengthy. None of the questions raised make it necessary to give anything like a detailed statement of facts. They can be understood without it. However, the record shows that in 1874 the appellant, who was then a young man some 20 to 22 years of age, lived with his father and other relatives in Erath county, Tex., near the Hood county line, and that during that year his father, himself, his brother-in-law, another brother, and others were duly jointly indicted by the grand jury of Hood ■ county for the murder of Isaac Truitt and Samuel Truitt and the wounding of Jas. Truitt, charged to have been committed in March, 1874; that in the latter part of that year his father was tried, convicted of murder in the first degree, and the death penalty found against him, and that in obedience thereto later he was hung; that after his father’s conviction, and before he was hung, the guards around the jail where he was confined killed another brother of appellant with whom there was some one else at the time at night; that the killing of his brother on this occasion by the guards was because his brother and whoever else was with him at the time were supposed to be either attempting to rescue his father from jail or convey to' him a poison so that he could commit suicide and avoid being executed; that immediately after the killing of the Truitts the appellant and others fled and continued fugitives until 1907, when appellant was arrested, brought back to Hood county, tried for the murder of said Truitts in 1874 on said old joint indictment, and acquitted. It was also shown that Jas. M. Truitt, who was killed in 1886 in Shelby county, was the same James Truitt who was wounded at the time Isaac and Samuel Truitt were killed in 1S74; that he attended the trial of appellant’s father when his father was convicted, testified in that case, and was the only living witness to the killing of said Isaac and Samuel Truitt and the wounding of himself on that occasion.

One of the most material questions on the trial of appellant, at which he was convicted and from which this appeal was had, was whether he was the person who killed Jas. M. Truitt in Shelby county in 1886.

Appellant objected to the introduction in evidence of the certified copies of the said indictment, judgment of conviction, and sentence of his father for the murder of Isaac and Samuel Truitt in 1874. To the indictment on the grounds: (1) That the indictment was hearsay as to him; that it was not shown at the time they were offered in evidence that he knew anything about the existence of it; (2) that the indictment offered is a substituted copy and there is no evidence that he knew that it was such an indictment or that any notice to substitute same was ever served upon him; and (3) that it was wholly immaterial to any issue before the jury in this cause and calculated to and will prejudice his rights before the jury and create in their minds great prejudice if such substituted indictment be permitted to go before the jury- as evidence. To the judgment of conviction and sentence his objections were substantially the same as the first and third to the indictment.

It is always permissible in a case of this kind for the state to prove any pertinent fact showing motive or intent; knowledge or notice to him of the indictments can be shown by circumstantial evidence as well as by direct proof. The evidence in this case, without doubt, if not by direct proof, circumstantially showed that the appellant had knowledge of all these matters at and about the time they were occurring. The court did not err in admitting these instruments objected to on any of the grounds stated by appellant.

Appellant objected to the testimony of Landers offered by the state to the effect that he was present when appellant’s father and others were tried in Hood county for the killing of the Truitts in 1874; that the jury convicted his father of murder in the first degree and assessed the death penalty; that he was present and saw appellant’s father hung under that conviction; that Jas. M. Truitt, for the murder of whom appellant was convicted in this case, testified as a witness for the state against his father on the said trial of his father, and that said Jas. M. .Truitt was' the only eyewitness to the killing of the said Truitts in Hood county; that he was one of the guards at the jail during the time appellant’s father was confined therein awaiting execution, and that one of appellant’s brothers was killed by the jailer or some of the guards while attempting to approach the jail while his father was confined therein under the death sentence; that the brother that was killed was crawling up to the jail and had a bottle of laudanum on him at the time he was killed. The appellant objected to this testimony because it was hearsay, and was getting in evidence before the jury an ex-parte proceeding to which he was not a party, and it was not shown that he was present at said trial or confined in jail or knew that his father was hung, or that his brother was killed while approaching the jail with poison for his father, and because said testimony was wholly immaterial and calculated to and did prejudice the rights of the defendant before the jury in this cause and created in their minds great prejudice against him.

Appellant made the same objections to substantially the same testimony of Peters, another witness for the state, as was made to the testimony of Landers. He made substantially the same objections to the testimony of another state’s witness Goodlett, who testified that he was one of the jurors who tried and convicted his said father and that the jury assessed the death penalty and that his father was hung thereunder.

In our opinion, the testimony of each of these witnesses was admissible for the purpose of proving motive and a cause for the killing of Jas. M. Truitt in 1886 by appellant and that it was pertinent and proper testimony as to him.

It was clearly shown that Mrs. Julia Truitt (Bishop), who was the wife of the deceased, Jas. M. Truitt, at the time he was killed in 1886, testified before the court and jury on trial of the appellant under the indictment in this case in March, 1908, that the appellant was, of course, present at that trial, heard her testimony, had the opportunity to and cross-examined her fully at the time. The state proved by the court stenographer that he took down in full her testimony on that trial. After properly identifying her testimony on that former trial by the stenographer, the state offered it in evidence on this trial. Thereupon the appellant, desiring to make objections thereto, asked, and the state consented, and thereupon the court retired, the jury from the preliminary hearing of the evidence to account for the absence and nonresidence of said witness. After the jury was retired, before the court the testimony was introduced and clearly showed that this witness was then and had for many years prior thereto been a nonresident of the state of Texas, having removed from said state and the place where hei; husband was killed many years prior to this trial; that at the instance of the state, after the appellant was indicted in this case, she attended the court at which he was tried, or to be tried, several times. That the state tried to get her to attend this trial as well as other terms of court when the case was supposed to be tried, but that at some of the times, and especially at this time, she informed the district attorney by letters dated and marked at Birmingham, Ala., just IQ days before this trial, that she could not attend this trial under any circumstances; that she was then quarantined, nursing her only daughter who had scarlet fever. The testimony on this point which was addressed to and passed upon by the court, which was proper, clearly showed that she was a nonresident of the state, as stated above, was out of the state, as stated above, and jufet 10 days before the trial wrote to the prosecution officer, as stated above, and clearly, we think, showed that she was not only a nonresident of the state and resided out of it, but that she was then out of the state at Birmingham, Ala., and was not in Texas at all during the trial.

The appellant objected to the introduction of her testimony, first, because no proper predicate was laid for its introduction; second, it is not shown that such testimony was taken before the district court upon a former trial as provided by law; third, because the defendant had the constitutional right to be confronted by the witnesses against him upon this trial.

As stated above, there was ample evidence to justify the court in holding, as he did, that the proper predicates were laid for the introduction of this testimony, and that the facts clearly met the first and see-ond objections above stated. As to the third, this court has held adversely to the appellant in an exhaustive opinion by Judge Harper for this court in the case of Robertson v. State, 142 S. W. 533.

Appellant has several bills of exceptions to the testimony of the state’s witness Spradley, who was sheriff of Nacogdoches county at the time the deceased was killed in this case. The testimony of this witness objected to was to the effect that two days after the killing he got from Mrs. Truitt (Bishop) a description of the man she said shot and killed her husband. She was present at the time of the killing, saw it, and saw the man who did it. Also as to his testimony of iris trailing the horse the slayer rode from the place of the killing just after the killing, ánd the fact that while trailing him he made inquiries of various persons along the route where he was trailing this horse. He identified the tracks of the horse from time to time for a distance of a good many miles from Timpson, in Shelby county where the killing occurred, in a westerly direction until after the horse crossed the Trinity river many miles from the place of the killing. The court in no instance permitted the witness to state what the parties of whom he made inquiries told him. These bills are quite lengthy, but it is unnecessary to give them in full. It is clearly shown that from about noon the day the deceased was killed until an hour or two after the killing of that night that the party who did the killing was seen and clearly identified, riding on a horse of a certain description, going from west towards the east, where deceased lived, and that he stopped parties, or a party, and inquired the way to Timpson, the little town where the deceased lived and where he was killed. That about noon that day at a village he stopped and had the 'front feet of his horse shod. He left there going in the direction' of Timpson, was met and identified by several persons going in that direction after he had his horse shod; that he reached Timpson shortly before, or just about, sundown; that the killing occurred just after dark that night in the deceased’s residence; that this same party hitched his horse in a thicket some 75 yards from the house so that he would be at least partially concealed, went to the house where the deceased was sitting with his wife and child back in the room from the door where the slayer entered. That he stepped up into the door, partially crouched, and went on tiptoe or walked from the door several steps to where the deceased was, drew and fired a large pistol striking the deceased in the head, the ball passing entirely through the head, from which the deceased almost immediately expired. That Mrs. Truitt, the wife of the deceased, saw all of this and particularly observed it, not knowing at the time that the slayer intended to Mil her husband, and not realizing it until he got right at the deceased, drew his pistol and fired. That the shot or commotion in some way put out the light. The slayer deliberately retraced his steps, went back to and got on his horse, and was seen to pass through the little town in a lope going back west in the direction whence he came and whence those persons had seen him that evening. At least two witnesses testified positively to seeing the same man on the same horse return from Timpson going west the night after the killing and a sufficient time for him to have reached where they saw him after the killing. Sheriff Spradley and other witnesses are shown to have tracked this horse from the place where he was hitched, when the killing was done, back ‘ west for a considerable' distance— many miles — as shown above. It was also clearly shown that the appellant at that time had a brother, Dan Mitchell, who lived in Erath county, and it appears had lived there continuously from the time of the killing of the Truitts in 1874 at least until the killing of the deceased in this case. That the appellant was a fugitive from justice from 1874 until arrested in 1907, on the old charge against him in Hood county, and that during that time he was in southwestern Texas and repeatedly seen therein. That he from time to time during this time went under different names. Appellant also laid the predicate and introduced the testimony of some witnesses to contradict Mrs. Truitt (Bishop) in her testimony, among other things, of the description she had given of the slayer shortly after the killing.

While there was positive testimony by witnesses identifying the appellant as the person who fired the shot that killed the deceased in this case, there is a great deal of circumstantial evidence which was clearly admissible for the purpose of and tending to show that appellant was the slayer. In our opinion, the testimony objected to by the appellant of the witness Spradley, as shown by the record and as qualified by the judge in allowing the bills, was admissible, and the court did hot err in admitting it.

There is in the record what is claimed to be appellant’s bill of exceptions No. 8b, undertaking to object to the testimony of said Spradley to the effect that he arrested, soon after the killing, Dan Mitchell, a brother of appellant, and took him to Nacogdoches, placing him in jail there, and that, after getting certain information, he then went to Kinney county, where appellant lived, looking for him. The court expressly refused to allow the bill as this evidence was claimed to be presented therein, but allowed it as the evidence was presented by the statement of facts, referring to the page. As the matter is presented and qualified by the court, there was no error shown by this bill.

By another bill appellant objected to the testimony of said Spradley of the description given to him by Mrs. Truitt (Bishop) of the slayer some 10 days after the killing. As stated above, the appellant had introduced witnesses showing contradictory statements made by Mrs. Truitt (Bishop) in her description of the slayer. When such is the case, it is always competent for the par-o ty whose witness is thus attacked to sustain the witness by showing that he had made statements similar to those testified to by him, to other parties about the time. For a collation of some of the authorities on this point, see 2 Buckler’s Criminal Digest, p. 1741, § 573, and White’s C. C. P. § 1119, subd. 4, p. 729.

By another bill of exceptions appellant complains of this language, which, he says, was used by the district attorney, Hon. W. B. O’Quinn, in his opening speech for the state: “She (meaning the wife of the deceased) knows better than any other person in the world, except the defendant, that he, the defendant, was the man who killed her husband.” This was objected to because it was claimed it was a direct reference to the failure of the defendant to testify in his own behalf on the trial. The court, in allowing this bill, qualified it, stating that' if his attention was called to the remarks which he did not recollect, it was done privately and the jury heard nothing of it. The bill does not state any of the proceedings in the case so as to show whether or not this remark was justified, and it does not show that the defendant did not testify on the trial. We think it would be a strained construction of this single remark, as quoted, to be any reference to the appellant’s failure to testify, if he did, and as the matter is presented it does. not show any reversible error. The appellant requested no charge to the jury that they should not consider it. Combs v. State, 55 Tex. Cr. R. 337, 116 S. W. 584; Knight v. State, 144 S. W. 967, recently decided, but not yet officially reported; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Arnold v. State, 38 Tex. Cr. R. 5, 40 5. W. 735.

Two other complaints by appellant are to the failure of the court to charge the jury the object of the introduction of the old indictment of appellant and his father in Hood county, and the judgment of conviction and sentence of appellant’s father, and that, if admissible at all, they were only admissible to show motive on the part of appellant and claiming the jury were left without any direction to consider them for that purpose only. The appellant introduced a certified copy of acquittal of him under the said' old indictment against him and his father in Hood county. This testimony could not have been used by the jury for any other purpose. It was unnecessary for the court to charge limiting that testimony. No special charge was requested by appellant on the subject Harrelson v. State, 60 Tex. Cr. R. 534, 132 S. W. 783, and eases there cited. Neither did the court err' in not charging limiting the testimony of Landers, Peters, and Goodlett, hereinabove stated, for the same reasons.

Another complaint is that the eourt erred in failing to charge the jury that if they believed from the evidence that Mit Graves killed the deceased, and that the eourt erred in failing to charge the jury that if they believed any other person than the defendant killed the deceased, or they had a reasonable doubt of it, they would acquit him. The appellant, as the court in allowing this bill-states, requested no charge on any of these matters and made no exceptions during the trial. The eourt in the charge given required the jury to believe beyond a reasonable doubt that the appellant killed the deceased, and charged also reasonable doubt, and told them that if they had a reasonable doubt of the guilt of the defendant to acquit him. The court also gave a correct charge on alibi to which there is no complaint. In our opinion, there is not sufficient evidence in the record to have justified the eourt to have submitted to the jury whether or not Mit Graves killed the deceased. In view of the charge given by the court, shown above, the court did not commit reversible error in not charging, as complained by appellant, on this ground. See C. C. P. art. 723.

By another bill appellant objected to certain testimony by the state’s witness John T. Garrison. The bill, as qualified by the court, shows substantially this state of facts: This witness testified that he was in the little town of Timpson at the time of the killing of the deceased and heard it very soon after it occurred; that he at once went to the house of the deceased; that in going from where he was when he heard it to the deceased’s house he saw what was evidently the slayer riding in a lope across the town, not in the streets, but away from and from the direction of where the killing had occurred. That in going to the house he met parties who gave a description of the slayer, and that upon going to the house he saw the deceased’s wife, talked with her, and his testimony shows, with reasonable certainty, that he then and there got from her a description of the slayer. This occurred very shortly after the killing, and, from his testimony, it occurred within 20 or 30 minutes from the time of the killing. As stated above, the defendant introduced witnesses who testified that they heard the wife of the deceased describe the slayer, whether at this identical time and to' this identical witness Garrison or not is not made clear, but it all occurred about the same time very soon after the killing. Their testimony was introduced to contradict Mrs. Truitt in the description of the appellant which she gave at the time of the killing, they testifying she gave a description different from what she testified on the stand when she testified in the trial of this case. This witness Garrison is also shown by his own and other testimony to have very soon after the killing, and on the same night, tracked the horse the slayer rode away from the killing for several miles during that night, and also an additional distance the next day. Under these circumstances the court permitted this witness, at the instance of the state, to testify to the description of 'this man as he got it that night, and that that was the description of the man he was tracking away. from the scene of the killing. The court admitted the testimony on the basis that the whole of the witness’ testimony showed that he got that description from the wife of the deceased that night very soon after the killing occurred, and that the man that he described as the one whom he was tracking away from there, in effect, suited that description. The court at first, when the objections were made, declined to let the witness Garrison so testify, but when the state reintroduced him, and there was elicited from the witness further and additional testimony on the subject, the court then permitted him to testify as stated. The appellant objected thereto on tne ground that it was hearsay, inadmissible, and prejudicial to the appellant’s rights in that it was getting before the jury the ideas and conclusions of other persons than the • witness as to the man who killed the deceased. As the matter appears in the record, no reversible error was shown by permitting this testimony.

Another objection is that the eourt did not charge on murder in the second degree. If appellant was the slayer, the evidence presented nothing but murder in the first degree. No special charge presenting murder in the second degree was requested, and none should have been given.

Neither did the court err in not charging on circumstantial evidence. No charge was asked by the appellant on that subject. There was positive evidence by Mrs. Truitt, the wife of the deceased, positively identifying the defendant as the slayer. There was further evidence and strong corroborating circumstances by other witnesses tending to show that he was the slayer. It is only necessary to give a charge on circumstantial evidence when there is no testimony other than circumstantial evidence to show the guilt of the appellant.

The only other bill of exceptions by appellant states that the state in this case was represented by Hon. W. B. O’Quinn, the district attorney; that he was an able, vigorous, and fearless prosecutor and conducted this prosecution with great skill and ability, “but, notwithstanding this fact, the judge who tried this cause questioned the witnesses as is shown by the statement of facts filed herein, as follows: On page 7 he asked one question; on page 8 two questions; on page 10 two questions; on page 15 one question; on page 41 one question; on page 42 four questions; on page 43 three; on page 44 one; on page 47 one; on page 51 two; on page 53 one; on page 55 two; on page 57 two; on page 58 two; on page 59 one; on page 61 two; on page 68 two; on page 69 one; on page 70 two; on page 71 two; on page 72 one; on page 73 one; on page 75 one; on page 80 one; on page 81 three; on page 124 three; making a total of 44 times the court asked the witness in this cause questions.” The bill then proceeds to state that in paragraph 21 of the motion for a new trial appellant assigned the action of the court in making these frequent and repeated interrogations of the witnesses as error and states: “And he here excepts to said frequent and repeated interrogation of the witnesses during the taking of the testimony in said trial, because the court thereby manifested an undue interest therein in behalf of the state to the prejudice of this defendant. That the effect of the court’s repeated interrogation of the witnesses was to impress the jury with the idea that the court thought the defendant was guilty and ought to be convicted.” And claims that the action of the court was to the prejudice of the appellant and deprived him of a fair and impartial trial. The court, in allowing the bill, did so with this statement or qualification: “I approve and allow this bill, and in doing so I respectfully and earnestly request the court to give its subject-matter careful scrutiny and to give clear expression of its views as to the merits of defendant’s criticisms of my action in this regard; upon examination I think it will be found that my questions had for their object a definite and clear understanding of the witness or to make his statement intelligible, and no other, and that they nowhere suggest any bias or leaning in the case. I am familiar with the rule and with the just strictness with which the courts of last resort insist upon its observance that the trial judge shall not make himself a partisan, but on the other hand, now and during all the many years I have occupied the district bench, X have regarded it as equally my duty to give intelligent direction to all stages of a trial, and to ask witnesses such questions as in this case I deemed necessary to an economy of time and to make-clear and certain the meaning of the witness.”

It is a sufficient and complete answer to this bill to state that neither in this bill, nor anywhere else in the record, is it shown that the appellant objected at the time the questions were asked by the court to any or either or all of them, and took no bill of exceptions thereto at the time- Doubtless, if this had been done at the time, the court would have desisted from asking any question, and if necessary would have taken steps at the time to correct any wrong impression on the jury, if any wrong impression was m’ade. Such matters can be presented to us for revision only when excepted to at the time, and bills of exceptions taken thereto. They cannot be presented for a revision by a mere motion for a new trial and a bill of exceptions showing that they were only called attention to by a motion for a new trial, as is shown in this instance. However, the learned judge who tried this case in the qualification to the bill, we think, shows that no special injury, as claimed by appellant, occurred to him that would justify or authorize this court in any event to reverse this case.

A proper interpretation of our statutes makes it clear, we think, as well as many decisions of this court on the subject, that the court should refrain from asking questions of the witnesses. This should be left to the attorneys representing the respective sides. We know how hard it is for the court to refrain from doing this in many instances, but he is, and should be, and we have no doubt in this ease the learned judge was, wholly disinterested, and not the representative of either side. We believe it is always safest, unless an extraordinary occasion should arise, or it became necessary, for the presiding judge to make an intelligent ruling, when the evidence is being detailed before the jury, for the judge to ask no questions. This is the safer rule and should be observed by the trial judges.

The only other question raised is as to the sufficiency of the evidence to show that the appellant was the person who killed the deceased. The record shows that this is probably the fourth, at least the third, trial of this case, the prior trials resulting in hung juries. The testimony from the state’s side, taken as a whole, is sufficient to sustain, the verdict. There is nothing in the record to show any bias or prejudice either for or against the appellant by the jury as a whole, or any one of the jurors. The learned trial judge has heard the whole testimony on all the trials. The appellant was positively identified by Mrs. Truitt (Bishop) as the slayer. There is testimony in the record strongly corroborating her. It is true she was contradicted in some particulars by several witnesses. But all that was for the jury. The motive of the appellant for the killing is unquestionably shown. The court charged the jury on alibi, and, in addition to the general charge on the presumption of innocence of the appellant, he charged unless the jury believed his guilt is established by the evidence, beyond a reasonable doubt, they would acquit him, and in addition that, if the evidence raised in their mind a reasonable doubt as to the presence of the appellant at the place where deceased was killed at the time of the killing, they should acquit him. The law, as we believe, has wisely left such matters to a jury of 12 disinterested, unprejudiced, competent men who hear all the testimony, all of the argument of the attorneys, and the charge of the court, and has made them the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, and has not delegated any such power or authority to this court. We have carefully read and studied all of the testimony in this case, and under our duty, as we see it, we cannot do other than affirm this judgment.

On Motion for Rehearing.

By his motion for rehearing appellant contends that this court erred in holding that the lower court did not err in failing to limit, by his charge, the purpose for which the jury could consider the Indictment of appellant, his father, and others for the murder of Isaac and Samuel Truitt and the assault to kill the deceased in this case, found by the grand jury of Hood county in 1874, alleging the killing and assault to kill to have occurred in said county at said time; and the judgment of conviction and sentence of appellant’s father in that county, and the testimony of the witnesses Landers, Peters, and Goodlett of the conviction of appellant’s father in that case, the sentence, and the fact that he was hung under said indictment, conviction, and sentence, claiming that this was of such extraneous matters that it- made it the imperative duty of the court to limit the effect of this testimony in this case. The original opinion states, and it was an unquestioned fact shown on the trial of this case, that the appellant himself was arrested and tried in 1907 in Hood county on said indictment found against him in 1874, for - the murder of Isaac and Samuel Truitt, and that he was acquitted by the jury in that case. The record shows that no testimony whatever was introduced in this case of the facts charged in the indictment in the Hood county case in 1874.

On this point appellant cites us to the cases first collated by Judge White in his Annotated Code of Criminal Procedure, § 815, p. 534, to support his contention. Judge White deduces from these cases, and states this rule: “Whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly, to prove the main issue, and which might tend, if not explained, to exercise a wrong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of a party, then it becomes the imperative duty of the court, in its charge to the jury, to so limit and restrict it that such unwarranted results cannot ensue; and a failure to do so will be radical and reversible error, even though the charge be not excepted to.” All these decisions were rendered before the amendment (Acts 25th Leg. c. 21) of article 723 (old) C. C. P., as it now is, and since then has existed. So that the latter clause of the» rule stated by Judge White above may not apply as he himself otherwise in his Annotated Code of Criminal Procedure states.

It has always been held by this court that the proof of motive and intent on the part of an accused person is not an extraneous matter, but on the contrary that it is to prove the main issue in the case and in such event, as stated by Presiding Judge White in Hudson v. State, 28 Tex. App. 341, 13 S. W. 390: “Such evidence being legitimate and admissible to prove a main issue in the case, to wit, defendant’s motive and malice in the perpetration of the murder, it was not obligatory upon the court in its charge to limit and restrict the purposes for which the evidence was admitted. The rule as to restriction or limitation does not obtain with' regard to evidence proving directly the main issue involved in the trial. Davidson v. State, 22 Tex. App. 373 [3 S. W. 662].” This rule is also expressly stated and recognized by Judge White in said section 815 above noted. A great many other cases from this court might be cited to the same effect, but it is unnecessary. It is our opinion that it was impossible for the jury to be improperly influenced by this testimony complained of by appellant, so as in any way to be reversible error for the court not to have given a charge instructing the jury as to the consideration of its purpose as claimed by appellant.

It is unnecessary for us to discuss the case of Betts v. State, 144 S. W. 677, recently decided but not yet officially reported, to show that it is wholly inapplicable to this case.

Appellant’s next contention is that this court erred in holding that the lower court did not err in not submitting in its main charge that it Mit Graves, or any other person other than the appellant, killed the déeeased, to find the appellant not guilty. By his motion for rehearing he requests this court to state in its opinion all of the evidence on this subject which might tend to show that his complaint is correct.

The statement of facts in this case is quite lengthy. It takes 130 full typewritten pages to record and show to this court the evidence introduced on the trial. It is true that perhaps a large proportion of it would be unnecessary to give on this subject, still it would require a considerably large portion of it to attempt under what appellant contends is pertinent on this question. We can see no sufficient reason that it would elucidate in this ease, or that it would be of any benefit in any other, hence we cannot, in this opinion, undertake to give all of this testimony. We have read and studied this evidence, the whole of it, with a great deal of care and gone over the portions of it on this point time and again, and, from the whole record, it is our opinion that appellant’s contention presents no reversible error in this case.

The rule on this subject is well established and adhered to in this state. Bishop v. State, 43 Tex. 390; Davis v. State, 28 Tex. App. 560, 13 S. W. 994; Maxwell v. State, 31 Tex. Cr. R. 144, 19 S. W. 914; Cannon v. State, 41 Tex. Cr. R. 490, 56 S. W. 351; Alexander v. State, 138 S. W. 738, and many other decisions. In a well-considered opinion by Judge Hurt in Davis v. State, supra, he said: “Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged, in order to require a charge applicable thereto? Chief Justice Roberts says that if its force is deemed to be very weak, trivial, or light, and its application remote, 'the court is not required to give a charge upon it.’ ‘If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.’ Bishop v. State, 43 Tex. 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions. This position is in exact harmony with the first opinion in this ease, and in accord with Bishop’s Case, supra, and a number of cases decided by this court, notably Cunningham’s Case, 17 Tex. App. 89, Elam’s Case, 16 Tex. App. 34, and Leeper’s Case [27 Tex. App. 694, 11 S. W. 644]. See, also, Johnson’s Case, 27 Tex. 758. Loose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably — not possibly — be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probable — not possible, but probable — -and, unless this appears, there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle.”

This rule was well established in this state while article 715 (old) C. C. P., and article 723 (old), before it was amended in 1897, were in full force. Those articles, before 723 was amended in 1897, required this court to reverse whenever either, as they were then construed, an error of commission or omission was made in the charge of the lower court. Since then this court has followed, as it was bound to do, the amended article 723 which requires: “The judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant.”

It was not intended by this court, in the original opinion in stating that no objection was made to the charge of the court on this ground on the trial of the case and no special charge covering the point was asked, to thereby state, or even imply, that any error either of commission or omission in the charge of the court could not be raised by a motion for new trial as prescribed in said article 723, even though a special charge had not been requested on the trial nor any specific objection made at that time to the charge of the court. It was merely called attention to for the purpose of showing the state of the record and the attitude of the case when the case was tried and the charge of the court below given to the jury. Ever since the adoption of the amended article 723, this court has not looked with so much favor on the omission in the charge of the court when no exception was made thereto at the time of the trial, and no special charge asked covering the point, as if that course had been pursued on the trial; but in no instance has this court failed to take full cognizance of the matter even though it is first presented in the motion for a new trial.

A ’ careful and through consideration of the testimony on the trial of this case convinces us, beyond doubt, that if Mit Graves had been on trial in this case and he had been indicted instead of appellant, and the same testimony then introduced as was introduced in this case, that it would have been the duty of the lower court, and the lower court unquestionably would have charged peremptorily, to find Mit Graves not guilty.

In submitting the case to the jury for its finding, the court charged: “Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Bill Mitchell, did, in Shelby county, state of Texas, on or about the 20th day of July, 1886, unlawfully and with express malice shoot with a pistol and thereby kill Jas. M. Truitt, you will find him guilty of murder in the first degree and assess his punishment at death or confinement in the penitentiary for life, in your discretion.” And then charged on alibi, stating what the defense of alibi is in this language, “if the deceased was killed as alleged, that the defendant was, at the time of such killing, at another and different place from that at which such killing was done and therefore was not and could not have been the person who killed the deceased, if he was killed. Now if the evidence raises in your minds a reasonable doubt as to the presence of defendant at the place where deceased was killed (if killed) at the time of such killing, you will find him not guilty.”

Appellant cites us to several cases to this effect: That a party accused of crime can meet this by showing that another or others committed it. This undoubtedly is the law. He also cites us to the case of Wheeler v. State, 56 Tex. Cr. R. 547, 121 S. W. 166, in which it is held that, because the court did not submit a charge in that case that if another, naming him, killed the deceased, they would find the defendant not guilty, and reversed the case because that was not done. A reference, however, to that case shows, as stated in the opinion, "that under the facts of the case this charge should have been given. Appellant may be guilty, or Powledge' may be guilty, or others may be guilty; and it may be stated, perhaps, that under the circumstances the jury might be warranted in coming to a conclusion as well against one as the other.” Numerous cases are then cited in that opinion sustaining the holding, and appellant cites us to others to the same effect. An examination of them will show that in each one of them there was sufficient evidence, just as in the Wheeler Case, supra, “that the appellant may be' guilty, or another may be guilty, or others may be guilty, * * * and, under the circumstances, the jury might be warranted in coming to a conclusion as well against one as the other.” No such facts appear in this case. Hence there was no reversible error in the court not charging as now complained of by appellant.

Appellant also complains that the court committed reversible error in permitting the witness B. T. Gibson to testify that Mrs. Truitt (Bishop), about ten days or two weeks after the killing, stated to him that she would know the man who killed her husband by the look he gave her out of his eyes. The record shows that the appellant in many ways undertook to break down the testimony of Mrs. Truitt (Bishop). Some of these were by contradicting her as to the description she gave the night of the killing of the person who killed her husband, the deceased, and by disputing her in other ways. The state then undertook, as it had the right, to support her testimony by showing that about, or soon after, the time of the killing she made similar statements to her testimony on the trial and among them was the one complained of above. The appellant’s objections to the testimony of Gibson 'were that such statement made ten days or two weeks subsequent to the killing was at too remote a time, and especially as to the statements the contradicting witnesses, Booth and Pike, testify she made to them the night of the killing, contending that such sustaining testimony, to be admissible, must be a part of the same conversation testified to by these impeaching witnesses, or in a contemporaneous one, or in a prior one nearer the transaction. Mrs. Truitt (Bishop) positively denied making the statements to the two impeaching witnesses that they testified she made to them. Unquestionably it is the law of this state and a general rule everywhere that, under such circumstances, either side can support the testimony of their witness by showing that such witness had made the same or similar statements to other parties as those testified to by him. The question of when such statements to others were made need not be made at the same time or contemporaneous with the ones claimed to be made by the impeaching witness. It is true that the statement by a witness made to another might be so remote as to show that it was inadmissible, but we are of the opinion that if, as in this case, made iñ ten days or two weeks, when there is nothing in the bill shown to impeach the good faith of the statement at the time, or, in other words, to show that the witness had been tampered with, or offered some inducement, or some occasion arose for the manufacture of such testimony. The bill shows no such thing in this case, and we are of the opinion that the admission of the testimony complained of as shown by this bill is not reversible error. The objections are more to the weight of the testimony than to its admissibility. We refer again to the authorities cited in the original opinion (2 Buckler’s , Criminal Digest, p. 1741, § 573, and White’s C. C. P. § 1119, subd. 4, p. 729).

The only other eompiaint by the motion for rehearing is to this sentence in, the original opinion of the court: “It is clearly shown that from about nopn the day the deceased was killed until an hour or two after the killing of that night that the party who did the killing was seen and clearly identified, riding on a horse of a certain description going from west toward the east where deceased lived and that he stopped parties or a party and inquired the way to Timpson, the little town where the deceased lived and where he was killed.” This sentence in the original opinion is singled out from a paragraph giving substantially a brief statement of what the evidence in the case established. Appellant, by his attorneys, claims that he cannot understand “how this court could so grossly and so injuriously to him misunderstand the testimony of these witnesses.” The criticism of this particular sentence in the main opinion is without the slightest foundation to stand upon. We again reiterate it and state further that there is not only no reasonable doubt, but that there is not a shadow of a doubt but that the party who did the killing of the deceased in this case was the person who was seen, and clearly identified, riding the horse described by the witnesses in the case going from west towards the east where the deceased lived and that he stopped parties, or a party, and inquired the way to Timpson where the deceased lived and where he was hilled that night. No one can read the record of this testimony and come to any other conclusion, or have any shadow of doubt hut that that party was the party who killed the deceased. Whether that party was the appellant, Bill Mitchell, is a different question and was so treated and so discussed in the original opinion. That the witnesses who saw this party on this horse differed as to whether that person was Bill Mitchell or not there is no question, and the sentence in the original opinion, quoted above and complained of by appellant in this case, cannot be tortured into a statement that Bill Mitchell, the appellant in this case, “was 'that person seen and clearly identified.” The conclusion from the evidence was not misunderstood by this court and not incorrectly stated by this court in the original opinion.

The motion for rehearing will be overruled.  