
    MILLNER v. STATE.
    (No. 3200.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Criminal Law (§ 621
      
      ) — Trial—Discretion of Court — Order in Which Defendants are Tried.
    Under the express provisions of Code Cr. Proc. 1911, art. 727, where two defendants, separately indicted as accomplices to the commission of the same crime, each filed affidavits asking that the other be first tried, it was in the court’s discretion to direct which one should be tried first.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1382, 1387; Dec. Dig. § 621.]
    2. Affidavits (§ 5) — Powers of Justices of the Peace.
    A justice of the peace is authorized to take affidavits.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dee. Dig. § 5.]
    3. Criminal Law (§ 1167) — Appeal—Harmless Error — Former Jeopardy — Cure by Veedict.
    A bill of exceptions, which shows that the defendant was indicted on two counts, one charging him as an accessory and the other as an accomplice, that at a former trial defendant was convicted on the second count, which conviction was reversed on appeal, whereupon defendant filed a plea of former jeopardy to the first count, which was overruled, presents no reversible error, where he was again convicted as accomplice and no testimony was admitted which was not admissible under the second count.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.]
    4. Criminal Law (§ 543) — Evidence—Former Testimony of Absent Witness.
    Evidence that the last time a witness for the prosecution was heard from he was in France, that he was a fugitive from justice, and that the sheriff holding the capias for him, had made diligent search and had not been able to locate him, is sufficient to authorize an introduction of the testimony given by such witness at the preliminary examination.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    5. Criminal Law (§ 542) — Evidence—Former Testimony of Deceased Witness.
    Where it appears on the second trial of a criminal prosecution that a witness, who testified at the first trial, has died in the meantime, his testimony at the former trial may be reproduced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dec. Dig. § 542.]
    
      6. Criminal Law (§ 528) — Evidence—Declarations or Codefendant.
    In the trial of one charged as accomplice to murder, declarations made by the principal are not admissible on behalf of the defendant, since the principal himself is not permitted to testify on behalf of such accomplice under Code Cr. Proc. 1911, art. 791.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1002-1010; Dec. Dig. § 528.]
    7. Criminal Law (§ 829) — Triai-Request-ed Instruction — Instruction Already Given.
    Where the charge of the court presents all the_ issues fairly and fully, and in a way to which the defendant makes no objection, it is not error for the court to refuse special charges requested by defendant.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    8. Homicide (§ 300) — Instructions—Prosecution of Accomplice — Self-Defense of Principal.
    In a prosecution of one charged as accomplice to murder, where the principal claimed self-defense, and there was evidence on behalf of defendant tending to show that the principal was a young man, small, sickly, and weak, the charge that the jury, on the issue of self-defense, might take Into consideration the relative strength .of the parties, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    9. Criminal Law (§ 673) — Prosecution of Accomplice —Evidence — Confession of Principal.
    In the trial of one charged as accomplice to murder, the written confession of the principal, voluntarily made, and admissible against the principal, is also admissible against the accomplice, if limited by the instructions to the sole purpose of showing the guilt of the principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. •§ 673.]
    10. Homicide (§ 163) — Evidence—Prosecution of Accomplice — Irrelevant Matters.
    In the trial of one charged with being an accomplice to the murder of the husband of a woman with whom the defendant had had illicit intercourse, evidence offered by defendant that the deceased had had illicit intercourse with another woman was inadmissible, since such misconduct would furnish no justification.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.]
    11. Criminal Law (§ 595) — Continuance-Absence of Witness — Competency.
    The absence of a witness, who would not have been competent to testify for the defendant in a criminal case, furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    12. Criminal Law (§ 594) — Continuance-Absence of Witness — Probability of Attendance.
    Where a criminal case has been pending for some time, the absence of witnesses, whose residences the defendant admits are unknown, is not sufficient ground for continuance, since there is no probability that their attendance -could be procured for the next term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    13.Criminal Law (§ 598) — Continuance-Absence of Witness — Diligence.
    A defendant is not entitled to a continuance of a second trial on the ground of absence of witnesses, who are not shown to have been in attendance at the former trial, where no process had been issued for them since that trial to secure their attendance at the second trial.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    14.Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to murder, testimony of the principal’s father that the principal was a grown man a year older than the accomplice is not material, and the absence of the principal’s father is not ground for continuance.
    [Ed. Note. — For other cases, see ’Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    15. Criminal Law (§ 596) — Continuance-Absence of Witness — Cumulative Testimony.
    The absence of a witness, whose testimony would be merely cumulative as to a fact which was undisputed, furnishes no ground for continuance of a criminal case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dee. Dig. § 596.]
    16. Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to the murder of the husband of the woman with whom defendant had had illicit intercourse, the evidence as to why defendant separated from his wife is inadmissible, and the absence of a witness, who would testify thereto, furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 59k]
    17. Criminal Law (§ 595) — Continuance-Absence of Witness — Character Witness.
    The absence of a witness who would testify as to the character of a defendant in a criminal trial furnishes no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    IS.Criminal Law (§ 595) — Continuance-Absence of Witness — Materiality.
    In the trial of one charged as accomplice to the murder of the husband of a woman with whom defendant had had illicit intercourse, where the defense claimed robbery was the motive of the principal in committing the crime, evidence that at one time the principal attempted to pick another’s pocket was immaterial, and the absence of a witness who would testify to that fact, and furnished no ground for continuance. '
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311,1323-1327; Dec. Dig. § 595.]
    19. Homicide (§ 169) — Evidence—Materiality — Prosecution of Accomplice.
    In the prosecution of one charged as accomplice to the murder of the husband of a woman with whom defendant had had illicit intercourse, evidence that the deceased’s wife knew that her husband had visited houses of ill fame was not material, and was properly excluded.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§.341-350; Dec. Dig. § 169.]
    
      20. Criminal Law (§ 1091) — Appeal—Harmless Error — Exclusion of Evidence — Cure by Other Evidence.
    A bill of exceptions complaining of the refusal to permit the defendant to answer a question as to what was done at a certain time, which does not state the answer which would have been made, but states that it was sought to prove that defendant and the wife of deceased, who were indicted as accomplices, had made no attempt at that time to induce the principal to commit the crime, shows no error, where defendant did testify fully as to that fact..
    [Ed. Note. — For other cases, see Criminal La w, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.)
    21. Criminal Law (§ 1170) — Trial—Misconduct of Prosecutor — Improper Question.
    In a prosecution of one accused as accomplice to murder, a question by the district attorney, asked the defendant on cross-examination, if he had not debauched the dead man’s wife, to which question the defendant’s objection was sustained, was not error, where the defendant had admitted illicit intercourse with the woman.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    22. Criminal Law (§ 1170) — Evidence — Trial of Accomplice — Declarations of Principal.
    In the trial of one charged as accomplice to murder, where it appeared that the principal came to accused the morning after the homicide, and was taken by defendant to his hiding place, and the defendant was allowed to testify that at that time he did not know that the deceased had been killed, it was not error to exclude testimony as to what the. principal said to the defendant on that occasion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    23. Homicide (§ 166) — Evidence—Motive.
    In the prosecution of one charged as accomplice to the murder of the husband of a woman with whom defendant admitted he had had illicit intercourse only a short time before the homicide, testimony that the intimacy had extended over several months, and that the defendant and the woman were desirous of marrying, was admissible to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    24. Homicide (§ 162) — Evidence—Trial of Accomplice.
    In the trial of one charged as accomplice to murder, where there was evidence that defendant had borrowed a $10 bill to aid a friend, who was in trouble, to get out of the country, evidence that when the principal was arrested he had a $10 bill and defendant’s watch on his person was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 303; Dee. Dig. § 162.]
    25. Criminal Law (§ 368) — Evidence—Trial of Accomplice — Declarations of Principal.
    In the trial of one charged as accomplice to murder, declarations of the principal which are part of the res gestee of the killing are admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.]
    26. Criminal Law (§ 1170%) — Appeal — Harmless Error — Misconduct of Prosecutor.
    The improper repetition of a question to which objection had been sustained in a different form is not prejudicial, where the question was not such as to tend in the least to show that the defendant had any connection with the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    27. Criminal Law (§ 721) — Appeal—Harmless Error — Misconduct of Prosecutor.
    Where the prosecuting attorney was permitted to ask defendant whether he had been informed at his preliminary examination that he could make a statement if he desired to do so, but was not permitted to ask whether he did make such statement, and the court, at defendant’s request, instructed the jury that defendant’s failure to make a statement at that time must not be considered by them, the fact of the failure to make such statement was brought before the jury by the defendant, and he cannot assign error thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    28. Criminal Law (§ 1171) — Appeal—Harmless Error — Statement by Prosecuting Attorney.
    In a trial of one charged as an accomplice for murder, where the codefendant, also indicted as accomplice, was not called to testify, a statement by the district attorney in the hearing of the jury that the codefendant was not a competent witness could not prejudice the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    29. Criminal Law (§ 957) — New Trial — Misconduct of Jurors — Improper Influence Inducing Agreement.
    A sworn statement by one of the jurors that he at first favored an acquittal and only agreed to a verdict of guilty after other jurymen told him they would join in a petition for a pardon after a certain time does not present a ground for new trial, since a juryman cannot thus impeach his verdict after he has been discharged.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig.. §§ 2392-2395; Dec. Dig. § 957.]
    30. Criminal Law (§ 954) —Appeal — Presenting Questions in Lower Court — Motion for New Trial.
    In a motion for a new trial in a criminal case every error upon which the defendant intends to rely should be presented to the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.)
    On Motion for Rehearing.
    31. Criminal Law (§ 1183) — Appeal—Modification of Erroneous Sentence.
    Where the trial court sentenced a defendant to a definite term instead of imposing an indeterminate sentence as required by law, the Court of Criminal Appeals will reform the sentence.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 3195-3198; 1183.] see Criminal Dec. Dig. §
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Howard Millner was convicted of being an accomplice to murder, and he appeals.
    Affirmed, and on rehearing sentence modified.
    
      J. Gus Patton, of Goliad, and I. A. Patton, of Alice, and John Baker, of Beeville, for appellant. G. E. Lane, Asst. Atty. Gen., for tlie State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
       For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 162 S. W. 348. On this trial appellant was again convicted of being an accomplice to the murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

The evidence in the case is fully stated in the opinion of Presiding Judge Prendergast, and the concurring opinion of Judge Davidson on the former appeal, therefore we do not deem it necessary to restate the facts. Sufficient to say that the evidence for the state showed that appellant was criminally intimate with' deceased’s wife; appellant visited the camp of deceased on Friday during his absence, remaining at the camp Friday night, and he admits he had sexual intercourse with deceased’s wife that night, deceased being absent from the camp. Eli Pointer, who was convicted as a principal, was present at the camp Friday night, and kept the children of deceased and Mrs. Gos-nell in another tent, while appellant was with Mrs. Gosnell. Saturday morning Eli Pointer carried appellant to the railway station, and he took the train and went to Placedo. Gosnell returned home Saturday, and he and Pointer got in the buggy to go to the camp, and on the way to the camp Pointer killed Gosnell, shooting him in the back of the head three times. Pointer went to the camp, secured one of Gosnell’s horses, and also went- to Placedo, getting to the boarding house where appellant was stopping about daylight.

The state proved by Mr. Bailey that appellant had talked to him before the killing about getting Mrs. Gosnell a divorce, and had inquired about how much of the property they could get from Gosnell; by a witness that appellant on Saturday tried to borrow $30, saying at the time he wanted to aid a friend who was in trouble to escape; that he did borrow $10 from his boarding house keeper, and this bill was later secured from Pointer’s possession, as was also appellant’s watch; that he tried to employ another man, a Mr. Miller, to get rid of Gos-nell, and there were many other facts and circumstances which would authorize a jury to find that he advised, commanded, and encouraged Pointer to commit the offense, and the killing was committed under a prearranged agreement between Pointer and appellant, and the evidence fully sustains the verdict.

There are a large number of bills of exception in the record which is very voluminous, and we will take them up in the order in which they are presented in the record. In the first bill it is again contended that the court erred in placing, appellant on trial before Mrs. Gosnell was tried. Both appellant and deceased’s wife were indicted charged with being an accomplice of Eli Pointer in the killing of Mr. Gosnell. Appellant filed a plea asking that she be first tried, and she also filed a plea of severance, and asked that he be first tried. They being unable to agree, the court, in the exercise of the discretion conferred on him by law, entered an order placing appellant first on trial. Article 727 specifically provides that if two or more of such defendants make such affidavit and cannot agree on the order of trial, then the presiding judge shall direct the order in which the defendants shall be tried. The affidavit of Mrs. Gosnell was in conformity with the statute, and a justice of the peace, under our laws, is authorized to take affidavits.

In the next bill appellant files a plea of former jeopardy as to the offense of being an accessory to the crime. It appears by the record that the indictment contains two counts; one charging him with being an accomplice, the other charging him with being an accessory. On the former trial both counts were submitted, and he was convicted of being an accomplice. If on this trial appellant had been convicted of being an accessory, a more serious question would have been presented, for our decisions seem to hold that, when more than one count is contained in an indictment, a conviction- under either count is an acquittal of the other counts. But as appellant was again convicted of being an accomplice, the same offense for which he was convicted on the former trial, and no testimony was admitted which was not admissible to prove that he was an accomplice, no reversible error is presented by this bill, for in it and in no other bill is it attempted to be shown that any testimony was admitted which might tend to show that he was an accessory to the crime, and was not admissible on the issue of whether or. not he was an accomplice.

The third bill relates to the introduction of the testimony of Pete Miller, taken at the examining trial. On the former appeal this testimony was held admissible, and we see no reason to change our ruling. The evidence on this trial shows that the last time Miller was heard from he was in France, and there is' no suggestion that he has ever again set his foot in the United States. It further appears that he "was a refugee from justice, and the sheriff who held the capias for him had made diligent search and had not been able to hear from him or locate him since he was last heard from in France. We had this question before us in the case of Whorton v. State, 152 S. W. 1082, and Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, and therein discussed in full the rules under which a dead or absent witness’ testimony can be reproduced, and we see no reason to reverse our holding. And under those decisions, it appearing that Mr. McBride is dead, and has died since the last trial of the case, there was no error in permitting his testimony at the former trial to be reproduced.

Again, it is contended that statements made by Eli Pointer to Lonnie Smith and others in regard to the killing of Mr. Gosnell should have been admitted. We do not think any one could or would contend that if Pointer himself was on trial such statements would be admissible in his behalf, nor could the state introduce them; he being in jail charged with being a principal in this offense. The law would not and does not permit him to testify in behalf of his codefend-ant, and if he could not testify if called as a witness, certainly statements made by him when he was incompetent as a witness are not admissible. We discussed this question at length in Wyres v. State, 166 S. W. 1150, and cited the authorities, giving the reason for the rule, quoting approvingly the law as laid down by Judge White in Long v. State, 10 Tex. App. 197:

“If he cannot testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from Mm? To permit this would be to abrogate the law.” Article 791, C. C. P.

The court presented the issue of self-defense fully in his charge, other than it was contended that it was error to charge on the relative strength of the parties. No other objection to the charge at the time of the trial was made, and no other error attempted to be pointed out therein. The court instructed the jury that if Pointer in killing deceased acted in self-defense, appellant would be guilty of no offense, and should be acquitted, or if Pointer killed Gosnell for the purpose of robbing him, the jury should acquit appellant. Having presented all the issues fairly and fully, and in a way to which appellant’s counsel made no objections at the time the charge was submitted to them for their inspection, the bills complaining of the refusal of the court to give the special charges requested present no error.

As to the objection made that the court erred in instructing the jury to take into consideration the relative strength of the parties, it is without merit, for the record teems with evidence brought out by appellant that Pointer was a young man, small, sickly, and weak, and under such circumstanecs the charge was authorized.

Again, it is contended that the court erred in admitting the confession of Eli Pointer in evidence. This question was passed on in the former appeal in this case, and the confession held to be admissible. It was necessary on this trial to prove that Pointer was guilty of unjustifiable homicide, and all testimony going to show that fact if he was on trial would be admissible on this trial to prove that same fact, and we do not think that any one can contend that if Pointer was on trial the confession would not be admissible. Of course, it was admissible only to prove this—Pointer’s guilt—and not to prove the guilt of appellant as an accomplice, and had the court permitted it to be so used, it would present error. But the court properly limited the purpose for which said testimony was admitted, instructing the jury that same was admitted in evidence “for the purpose of showing and tending to prove that said Eli Pointer killed George Gosnell, and you will consider same for no other purpose in the case.” The contention that the jury would ignore such instruction and might consider it for other purposes cannot be sustained in the face of such positive instructions.

In the record there are several bills of exception complaining that the court erred in refusing to permit defendant to prove that George Gosnell, deceased, had been having illicit relations with a negro woman. If he had, this would furnish no justification for killing him by appellant and Pointer. Such facts would shed no light on any issue in this case, and the court correctly held it inadmissible.

The eleventh bill complains of the action of the court in overruling his fourth application for a continuance. If Mrs. Gosnell had been present, she would not have been a competent witness for defendant. The statute prohibits her testifying in his behalf, and nearly all the other witnesses sought to continue the case for he admits their residences are unknown. This case has been pending since February 12, 1912, and if in that length of time he has not succeeded in locating them, he has not used the diligence required by law, or could not reasonably expect to locate them by the next term of court.

As to the witnesses whose residence he gives, he does not show that they were all in attendance at the former trial of this case, or that any process had been issued for them since that trial in time to secure their attendance at this trial, but if due diligence had been used to secure the attendance of those witnesses whose residence is given, is their testimony admissible or material?

By Pointer’s father he only states he expects to prove that Eli was a grown man, and a year older than appellant. That would be material to no issue on the trial of the case. Mr. Hurst’s testimony would not be admissible, as Mrs. Gosnell was not a witness in the case.

The fact that deceased Gosnell was drinking on the day he was killed is proven by all the testimony, and is an undisputed fact, and the testimony of the witness Eagan would be but cumulative, and furnishes no ground in the fourth application for a continuance. The facts he states he expects to prove by Mrs. George Simmons were proven by the state by her husband, and is a fact amply proven by the record, and such facts were relied on by the state, and were not and could not have been beneficial to the defendant on, any issue in the case.

The testimony of Albert Max, as to why appellant separated from ‘his wife, would have been admissible on no issue made by ibis record.

The other witnesses named, one a character witness as to appellant, and the other a witness to the fact that Pointer at one time placed his band in bis (Small’s) pocket, when he woke up, furnishes no ground for a continuance under the issues involved in this trial, and the court did not err in overruling the application.

There is no merit in the contention that appellant should have been permitted to prove that Mrs. Gosnell was aware that her busband visited a house of ill fame while they were in Victoria. He may have been a libertine, but this did not authorize bis murder. Mrs. Gosnell may have had grounds to separate from ber busband, but this would not authorize a conspiracy to be entered into to have him killed by Pointer. In so far as this record discloses, be bad never done Pointer any injury, or gave him cause or excuse to kill him, nor gave appellant any ground to conspire with Pointer, if be did do so.

Appellant contends in bill No. 14 that he was not permitted to answer the following question, “What was said and done, if you remember, between you all?” referring to the Friday night before the homicide on Saturday evening when be visited Gosnell’s camp. The record discloses that the court permitted appellant to testify:

“I made no effort to procure Eli Pointer on that night to kill George Gosnell. I never offered Eli Pointer money for the purpose of killing Gosnell; never mentioned nothing about killing Gosnell at all. I never gave Eli Pointer two bits with which to buy cartridges. I did not offer Eli Pointer $500 to kill Gosnell, nor did I at the same time tell him that I would pay his attorney’s fees if he got caught up with. I never had anything to offer him or even to give him. I did not offer to give Eli Pointer on that night $500 for the purpose of killing George Gosnell. I did not promise to procure for him his lawyers, in ease he did the killing, to defend him, and I did not tell him that Sirs. Gosnell and I would swear him out of the trouble he would get into by killing Geo. Gos-nell; there was not anything mentioned about killing Gosnell at all. There was nothing mentioned about the death of Gosnell the next morning. After Pointer had gone to his tent, I did not go with Mrs. Gosnell or separate from Mrs. Gosnell and go to his tent and wake him up and have a conversation with him there about the death of Gosnell. I did not mention at any time to Eli Pointer that he had better kill Gosnell or Gosnell would kill him if he did not. I was friendly with Gosnell. I never at any time said to Eli Pointer, ‘Eli, I am the best friend you have on earth, and you had better take the $500 and go and kill him.’ I never said, ‘If you don’t, he will be as sure to kill you, as we are both -living.’ I did not tell Eli Pointer to kill Gosnell, and when he did to get on a horse and meet me in Placedo; there was never nothing said about killing Gosnell, never at any time, between me and Eli Pointer and Mrs. Gosnell, or anybody else, nor between me and Pete Miller.”

Tbe bill does not state wbat answer tbe witness would bave given to tbe question propounded, but in tbe bill it is said tbe defendant desired to testify that be nor Mrs. Gosnell bad made no effort to get Pointer to kill Gosnell. As shown above, tbe court did permit appellant to testify fully on that issue.

By the next bill it is shown that the district attorney asked appellant if “be bad not debauched the dead man’s wife.” The court promptly sustained appellant’s objection to the question, and instructed the jury not to consider it. As appellant in bis testimony on direct as well as on cross examination admitted be bad bad illicit intercourse with deceased’s wife, under such circumstances the bill presents no error.

As the state bad proven that Pointer killed Gosnell late Saturday evening, and that be at once left and went to the boarding house where appellant was stopping, called for him, and appellant gave him his breakfast, and then carried him across the lake, where be was in biding, appellant desired to testify all what Pointer told him at the time, but the court declined to permit him to do so, but did permit him to testify:

“I saw Pointer at Geo. Simmons that morning after day light, between 6 and 7, I guess. I was arrested in this matter Sunday evening, the day after Gosnell was killed on Saturday. I did not know on Sunday morning when I talked to Pointer that Gosnell was dead. I did not know on Sunday morning that Eli Pointer killed George Gosnell. I got some money from Shelley Barber, and at the time I was talking to Shelley Barber I did not know that George Gosnell had been killed by Eli Pointer, nor that Gosnell was dead. I did not know at that time that Eli Pointer was making or attempting to make his escape from the charge of murdering Gosnell or any other party. I had not the least idea that Pointer was dodging for the offense of murdering George Gosnell or anybody else. I did not learn of George Gosnell being dead until after I was arrested. I learned of his death something like 5 o’clock Sunday evening. I learned of the death of Gosnell when I was arrested. This was the first time I knew of the death of Gosnell.”

It appears from the record that every one else about there seems to have known that Gosnell had been killed except appellant, but be that as it may, it is seen that appellant was permitted to testify that be knew nothing of the transaction, and the additional fact be says be desired to testify to would have added no strength to bis testimony as tending to show that he was not an accomplice to the crime.

As appellant contended that be was not criminally intimate with Mrs. Gosnell until just a short time before the homicide, it was permissible for the state to show that this intimacy bad extended over several months, as tending to show a motive for the homicide as this testimony, together with the testimony of Mr. Bailey, tended to show that appellant and Mrs. Gosnell were desirous of assuming the relationship of husband and wife, and the only thing in the way was the deceased, Mr. Gosnell.

There was no error in permitting it to be proven that the sheriff secured a $10 bill from Pointer while in jail. The evidence for the state shows that appellant was trying to borrow money to aid a friend, who was in trouble, to get out of the country; that he did secure a $10 bill from Mr. Geo. Simmons, and the fact that a bill of this denomination, together with appellant’s watch, was in possession of Pointer, was a cogent circumstance in the case.

What Eli Pointer told Charlie Fagan was res gestae of the killing, and admissible. The court did not permit the witness to testify what Mrs. Gosnell said at the time, and while it was improper to repeat the question in different forms, yet the questions were not of the nature to be prejudicial, and they could not, by any stretch of imagination, tend in the least to show that appellant had any connection with the killing. The cogent circumstances in this connection are that Pointer admitted to Fagan he had killed deceased; that he left the camp almost immediately on one of deceased’s horses, and the next place we hear of him at daylight next morning he is at appellant’s boarding house, inquiring for him, and appellant proceeds to place him in a place of concealment, and when discovered he had appellant’s watch, and apparently the money appellant had borrowed to aid a friend who was in trouble to escape from the country.

Pete Miller was the witness who was shown to be in France, and his testimony, given at the examining trial, was admitted in evidence. In this testimony Pete Miller stated that on Saturday night, the evening of the homicide, appellant asked him to go with him to the railroad station, stating he expected Eli Pointer on the train that night. Appellant denied this on the stand, and testified that while he and Pete Miller did go to the Plaeedo depot that night, they went there to get beer for themselves and Geo. Simmons, that he did not go there to get Eli Pointer, and that he did not tell Pete Miller •that was his mission. On cross-examination the state asked him if he was not present when Miller testified, if his attorney was not present, and if he did not hear Miller 'testify, all of which appellant admitted; then the district attorney asked him why he did not ask Miller if their mission was not to buy beer for themselves, and for George Simmons, instead of going to meet Eli Pointer. The only reason appellant gave was that he had just employed his attorney, and that he did not then inform his attorney that they had gone to Plaeedo station to buy beer. Appellant was asked if he was told by the justice of the peace that he had a right to make a statement if he desired to do so, and he answered that he was so told. The bill does not disclose that appellant was asked whether or not he did make a statement, but the objection made is that the question as to whether or not he was told he could make a statement if he desired was a reference to the fact that he did not make a statement. The court says the district attorney was told that he could ask appellant as a witness the simple question if he was informed he had a right to make a statement, and it will end right there. Appellant then asked the court to instruct the jury in regard to the matter, as appellant contended it had been gotten before the jury that appellant did not make a statement at that time, and the court, at appellant’s request, did instruct the jury “that his failure to make a statement could not be used against him as evidence at all of his guilt or innocence on this trial. Tou will not consider it as being in evidence.” Had the fact that appellant did not testify at that time been elicited over appellant’s objection, it would perhaps present error. But the court very promptly sustained appellant’s objection before any such testimony was adduced, and if the fact got before the jury that appellant had not testified at the examining trial, it was by reason of the objections being made by appellant; and, under such circumstances, when the court instructed the jury not to consider the matter, we do not think it presents-reversible error.

In the condition this record is in'the fact that the district attorney stated in the hearing of the jury that Mrs. Gosnell was not a competent witness would not present error. The fact was made manifest that appellant could not call her as a witness, and the state did not do so, and certainly this could not be hurtful to appellant.

The fact that one of the jurors swears that he was at first in favor of an acquittal, and that he only agreed to a verdict of guilty, assessing the punishment at 20 years’ confinement in the state penitentiary, after the other jurymen had told him that, if appellant was given that punishment, after he had served 10 years, if he behaved himself, they would join in a petition for a pardon, presents no ground for a new trial. A juryman is not thus allowed to impeach his verdict after he has been discharged.

We have discussed' each of appellant’s bills of exception, although many of the claimed errors in the bills were not presented in the motion for new trial. In fact in the motion for new trial the only grounds alleged are that the court erred in overruling his fourth application for continuance; in refusing to grant his plea of former jeopardy as to the count charging appellant with being an accessory; that the court erred in permitting the testimony of J. W. McBride, who was shown to be dead, and the testimony of Pete Miller, who was in France the last time he was heard from, to be reproduced; that the court erred in not permitting appellant to give any conversations he had with any one in reference to the charge herein; that the court erred in not permitting the witnesses to testify what Eli Pointer told them while he was in jail charged with the offense; because the court authorized the jury to consider the relative strength of the parties, and because the court erred in refusing to give his special charges Nos. 1, 2, and 3, and because of the fact that a juryman made affidavit that he agreed to the verdict when the others promised to aid him in getting a pardon for appellant after he had served 10 years, there being only nine grounds in the motion, embracing only the above matters, and which alone the court was called on to consider in passing on the motion for a new trial. Yet, the court having adjourned on March 14th, some two months after court has adjourned, appellant prepares and files 23 bills of exception, some of them setting up matters upon which the court was not given a chance to act on in the motion for new trial. This is hardly fair to the trial court. In the motion for new trial everything relied on to secure a new trial should be presented po the trial court, and we hope in future this will be done. As appellant received a punishment almost equivalent to life imprisonment, we have reviewed each and every one of his bills of exception, yet in fairness to the trial judge, we should have only considered such matters as were presented to him as grounds why he should grant a new trial, for on these and these alone he based his ruling. While some of the matters complained of in some of the bills may, as herein shown, present minor errors, yet none of them could possibly have had any influence or bearing on whether or not appellant was an accomplice to the crime of murdering Gosnell. As said by appellant in the record, the fact is plainly manifest that Pointer killed him, and in our opinion the evidence, while circumstantial only, fully justified the jury in finding that appellant knew it would happen when it did; that he advised and encouraged Pointer in the commission of the offense, and when Pointer killed Gos-nell, he at once fled to appellant.

The judgment is affirmed.

DAVIDSON, J.

This case was submitted June 24, 1914. It is a very large record; .therefore I have not had the time to read the record. I express no opinion as to the questions involved.

On Motion for Rehearing.

HARPER, J.

Appellant in his motion for rehearing in this court, but reiterates his motion for new trial filed in the trial court. All these grounds were passed on in the original opinion. Appellant files no brief on his motion for rehearing, cites no authorities in support of his contentions other than were originally cited, and none of which, we think, show any grounds which should necessitate a reversal of this case. Our attention is called, however, to the fact that the court in passing sentence ignored the terms of the indeterminate sentence law, and passed on appellant a definite and fixed term of imprisonment. This he should not have done, but appellant should have been sentenced to a term of imprisonment in the penitentiary for not less than 5 nor more than 20 years. As this court is authorized to reform and correct judgments, it is ordered that sentence and judgment by the trial court be so reformed as to hereafter read that appellant bq confined in the penitentiary for a period of not less than 5 nor more than 20 years, and judgment so decreeing will be entered herein.

The motion for rehearing is overruled.  