
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1911.
    Rehearing Denied Dec. 13, 1911.)
    1. Ceiminal Law (§ 1159) — Appeal—Verdict — Conclusiveness.
    Contradictions in the evidence are for the consideration of the jury in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. §- 1159.]
    2. Homicide (§ 236) — Sufficiency of Evidence-Cause.
    In a prosecution for killing a newborn child, evidence held to sustain a finding that the child’s head was mashed in and its neck broken.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. § 236.]
    
      3. Homicide (§ 254)— Sufficiency op Evidence.
    Evidence held to sustain a conviction of murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    4. Criminal Daw (§ 1091) — Appeai>-Bill of Exceptions — Sufficiency.
    A bill of exceptions taken in a prosecution for killing a child, Just after its birth, in P., to which the mother and S. its putative father had come, showed that the child’s mother, while testifying for the state, was asked who came with her when she came to P., and she answered that S. came to P. with her; the question being objected to as irrelevant and immaterial, and as to a transaction between witness and S. in accused’s absence. The court allowed the bill of exceptions with the explanation that accused’s evidence showed that he came to P. at S.’s invitation, and saw witness and S. at another town a day or two before accused came to P. Meld, that the bill of exceptions was defective, so that it would not be considered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2S03-2S43; Dec. Dig. § 1091.]
    5. Criminal Daw (§ 1091) — Appeal—Bill of Exceptions — Sufficiency.
    In a prosecution for killing a newborn infant, of which S. was the putative father, while purporting to act as a physician at the birth, accused took a bill of exceptions which only showed an objection to a question to the child’s mother, “What was your condition with reference to being in a family way?” to which she replied, “I was in a family way, and it was nearly time,” which bill the trial judge qualified by stating that accused had stated that he examined the mother before he came to the place where the child was born, and found her pregnant. Another exception was to a question as to when witness became acquainted with S., which the judge qualified by stating that witness’ testimony showed that S. was the father of her child. Another bill of exceptions was as to the question, “Who was the father of your child?” witness answered, “S.,” which was qualified by stating that accused testified that he examined witness and found her pregnant. Another bill of exceptions was to a question, “You say that after they broke its neck, they put it in bed with you, and you then went to sleep?” which was qualified by stating that witness had testified that accused put his hands on the collar bone of the baby and jerked its head up and around, and, when witness objected that accused was killing the baby, he and the father said that it would die anyhow. Held, that the bills of exceptions were so defective that they would not be considered, being merely isolated questions and answers.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2803-2343; Dec. Dig. § 1091.]
    6. Criminal Daw (§ 1091) — Bills of Exception-Setting Out Evidence.
    A bill of exceptions must be full, and state enough of the evidence or facts to render intelligible the rulings excepted to; exceptions to merely isolated questions being insufficient.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2803-2843; Dec. Dig. § 1091.]
    7. Criminal Daw (S 915) — New Trial-Necessity of Objection.
    Error in not requiring accused to be prosecuted under his true name, instead of under that and an alias, cannot be first raised on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Daw, Cent.Dig. §§ 2152-2158; Dec.Dig. § 915.] 8. Criminal Daw (§ 1167-) — Appeal — Harmless Error.
    Accused was indicted as X, alias W., and ■when the state began to introduce evidence and the district attorney had referred to accused as X, alias W., his counsel stated that his name was X, and he had never gone by the other name, and asked that he be prosecuted in his real name, and the court stated that it would enter an order to that effect, but failed to enter it, and referred in the instructions to X, alias W. Accused testified that he registered at the hotel at which the crime was claimed to have been committed as W. Held, that accused could not have been injured by the court’s failure to enter an order directing accused to be prosecuted under the name of X, his true name.
    [Ed. Note. — For other cases, see Criminal Daw, Dee. Dig. § 1167.]
    9. Criminal Daw (§ 91S) — New Trial— necessity of Objection.
    Variance between the name of the foreman of the jury, as drawn and served and as signed to the verdict, cannot first be raised on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Daw, Cent.Dig. §§ 2219-2224; Dec.Dig. § 918.] 10. Criminal Daw (§ 1175) — Appeal — Harmless Error — Prejudicial Effect.
    W. C. “Brackeen” was drawn on the ve-nire, and served as foreman of the jury, and signed the verdict by that name, but signed it so that it looked like “Breeheen.” Accused’s counsel had known the juror for years, and accepted him as a juror, and saw him hand the verdict to the court, and heard it read with his name as foreman without objection. Held, that accused could not have been prejudiced by any apparent misspelling of the juror’s name.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3179-3182; Dec. Dig. § 1175.]
    11. Criminal Daw (§ 1037) — Appeal—Objection Below — Necessity—Improper Argument.
    Accused not having asked a special charge to the jury not to consider improper argument by the state’s attorney cannot complain on appeal.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    12. Homicide (§ 295) — Instructions.
    It was error, in a prosecution for killing an infant in which there was no evidence to show passion, to charge that if defendant, with his implied malice, “in a passion aroused without adequate cause,” unlawfully killed the infant, etc.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    13. Homicide (§ 340) — Appeal—Harmless Error — Prejudicial Effect Favorable to Accused.
    Error in a prosecution for killing an infant for predicating an instruction upon a killing “in a passion aroused without adequate cause,” when there was no evidence of passion, was not prejudicial to accused, so as to be reversible, especially where he received the lowest penalty for second-degree murder, since, if the quoted words had any effect at all, they placed a greater burden on the state than they should have done; Code Cr. Proc. 1895, art. 723, providing that, whenever it appears by the record that any of the requirements of the preceding articles relating to instructions have been disregarded, the judgment shall not be reversed, unless the error was calculated to injure the rights of defendant, and was excepted to at trial or on motion for new trial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.]
    14. Criminal Law (§ 1172) — Appeal — Harmless Error — Instructions.
    In a prosecution for the murder of a newborn child, in which accused, while acting as attending physician, was claimed to have killed it in the presence of the father 'and mother, the court instructed that if defendant, either alone, or acting together with the father as principal, unlawfully killed the infant child by breaking and dislocating its neck, etc., the jury should find accused guilty of second-degree murder; and further instructed that all persons were principals who acted together in the commission of an offense, and that the criterion for determining who were principals was whether the parties acted together in the commission of the offense, pursuant to a common intent and a previously formed design in which the minds of all concurred, and that, if (hey did so, they were principals, but that, before one could be held as a principal, he must not only have been present when the offense was committed, but must have, in addition thereto, aided, encouraged, advised, or agreed to the commission of the same, with a knowledge of the unlawful intent of the person actually committing it. Code Cr. Proc. 1895, art. 723, as amended in 1897 (Acts 25th Leg. c. 21), provides that whenever it appears upon accused’s appeal that any of the requirements of the preceding articles relating to instructions have been disregarded the judgment shall not be reversed, unless the error was calculated to injure accused’s rights. Held, that a judgment of conviction would not be reversed because of any technical omissions or misstatements in the instructions, especially where accused requested no charge on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3163; Dec. Dig. § 1172.]
    15. Criminal Law (§ 507%) — Accomplice —Sufficiency oe Evidence.
    Evidence in a prosecution for killing a newborn child held not to show that the mother was an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. § 507%.]
    16. Criminal Law (§§ 763, 764) — Instructions — Charges on Facts.
    It was error,' in a prosecution for killing a newborn infant, to charge that if the jury believed that the child’s neck was broken, as alleged in the indictment, that would not be sufficient to corroborate the evidence of the child’s mother, as the fact of corroboration should have been left for the jury’s determination.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731-1768; Dec. Dig. §§ 763, 764.]
    17. Criminal Law (§ 1137) — Appeal^—Invited Error.
    Accused cannot complain on ail appeal of the giving of a charge which he requested.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    18. Criminal Law (§ 741) — Trial —Jury Question.
    Unless the evidence shows without doubt that the witness is an accomplice, the court must submit that question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 741.]
    19. Criminal Law (§ 780)— Instructions— Accomplices.
    In a prosecution for killing a newborn infant in the presence of its mother and father, while accused was acting as a physician, the court instructed that a conviction could not be had upon the testimony of the accomplice, unless corroborated by other evidence tending to connect accused with the offense committed, and that the corroboration was not sufficient if it merely showed the commission of the offense; that an accomplice included all persons connected with the crime by their unlawful act or omission before, at the time, or after its commission, and whether or not they were present and participated, and that, if the jury believed that a certain witness was an accomplice or had a reasonable doubt on the question, they could not find accused guilty upon her testimony alone, unless they believed that it was true and connected accused with the offense, and unless they further believed that there was other testimony corroborating such witness and tending to connect accused with the offense, and that corroboration as to immaterial matters not connecting him with the commission of the offense was not sufficient. Held, that any defects in the instruction were not of sufficient importance to require a reversal of a judgment of conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    W. A. Jones, alias G. D. Wilkins, was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Allen & Dohoney and B. B. Sturgeon, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   PRENDERGAST, J.

On October 5, 1910, the appellant was indicted by the grand jury of Lamar county for the murder on July 6, 1910, of the infant child, without a name, of Willie Wilbur. He was convicted of murder in the second degree, and given the lowest penalty — five years.

The indictment is in two counts, though they are not given a separate number, nor are they in. separate paragraphs. After the formal part, the indictment alleges that W. A. Jones, alias G. D. Wilkins, on or about July 6, 1910, in Lamar county, did then and there unlawfully, and with his express malice aforethought, kill and murder an infant child of Willie Wilbur, said child being, without a name, by him, th'e said Jones, alias Wilkins, breaking the neck and disjointing and dislocating the neck of the said infant by then and there twisting the head and neck and pulling the head and neck and jerking the head and neck, and dislocating and breaking the neck and disjointing and dislocating the neck of said infant with his, the said Jones’, alias Wilkins’, hands and fingers from which said several acts (enumerated above and reiterated) the said infant on said date did die, and on said date the said Jones, alias Wilkins, did then and there unlawfully and with his express malice aforethought kill and murder the said infant child by him, the said Jones, alias Wilkins, pressing and mashing the head and bowels of the said infant with his hands and fingers, and by dropping and placing the infant in a night glass and slop jar_ from which said acts (enumerated and again repeated), the said infant did die, a better description of the means and instruments by which and with which the said Jones, alias Wilkins, did then and there kill and murder the said infant the grand jurors cannot give. The above, in substance and effect, are the allegations, but not a copy of the indictment.

It takes some 68 pages of typewriting to give the statement of facts. We do not undertake to give in detail this testimony, but from the whole of it, gathered by taking and combining the testimony of the several witnesses, where not otherwise stated, we will give' such statement as will illustrate the points raised and discussed:

The witness, a woman, Willie Wilbur, about 22 years of age, had been living in Oklahoma, and, it appears, "on the place of Bill (or W. W.) Swink for about a year pri- or to the commission of the alleged offense. That said Swink during that time had been having sexual intercourse with her, and the testimony justified the jury to believe that she became with child by him some time in November, 1909. That about Sunday July 3, 1910, she began to have some labor pains, and she and said Swink thereupon went from where they were living in Oklahoma to the city of Paris, in Lamar county, and put up at a restaurant or boarding house known as the “Hignite House.” Swink registered her name as Annie Ernest and his as J. G. Gentry, both from Texarkana, Tex. She was assigned to a room, and Swink to one adjoining, and soon after her arrival there went to bed, and practically remained in bed until after the birth and death of her child on Wednesday night July 6, 1910. She continued to have labor pains from, time to time until after- the arrival of the appellant on Tuesday afternoon July 5th. Appellant did not register at the Hignite House when he first arrived there, although he was assigned to and occupied a room therein, but he did register on the night of July 6th, when required to do so by the proprietor of the house, first starting to write his name W. A. Jones, but, before completing the word Jones, erased that, and instead wrote G. D. Wilkins, from Texarkana, Tex. Swink and Hignite, the proprietor of the house, were present when he did this. The appellant came to Paris to attend Willie Wilbur in confinement, knowing at the time that she was to be confined. He came at the instance of said Swink, and attended her at his instance. He made an examination of her Tuesday evening soon after his arrival there, and claims that he then discovered that she was in labor, and, while he thought it was premature, the examination developed that the birth could not be properly prevented, and he thereupon administered to her from time to time drugs for the purpose of bringing on and inducing the delivery of the child. The labor pains continued from time to time after he reached there, made his examination, and began to administer the drugs, with more or less increased severity until the child was born about 10 o’clock Wednesday night. While the women servants at the hotel waited on her and carried her meals to-ller Monday, Tuesday, and Wednesday, visiting the room some three or four times or oftener each of these days, no one was present at the birth of the child, and for some hours prior thereto, except said Swink and appellant. Soon, if not immediately, after the birth of the child, it began to cry, and cried somewhat vigorously and loudly. The two women working in the house and who had been waiting on the confined woman at once, after hearing the cries of the child downstairs where they were at work, went up to the room. The door was closed. Swink was standing with his back against it, and it was not opened for some time, and not until repeated and loud raps were made thereon. Finally, wben they were admitted, they saw and offered to take the child, wash, and dress it, but they were not permitted,by appellant or Swink to do so. At the deiiv-ery of the child, the appellant took it in his hands, one about its hips and the other about its head, had a night or slop jar in which there was some water removed from under a table, and dropped the child into this jar. He did not then tie or cut the navel cord. The child was crying at this time. He then attempted to remove the afterbirth. After letting the child remain in the night or slop jar for some time, he removed it therefrom, and placed it on a table. After the two servant women were admitted into the room,, they discovered that the appellant had neither tied nor cut the navel cord of the child, and called his attention thereto. He thereupon said to them that it was no use, “it will die anyway.” At this time the navel was bleeding. One of these women replied to him that he had better tie it. If he did not, she would call an officer, and have him arrested in five minutes. She then picked up an ordinary twine string that she found on the floor, handed it to him, and he then tied the navel cord. When the two servant women <jf the house offered to wash and dress the child, the appellant said: “No; it was not any use. It would die anyway.”' And he would not let them wash or dress it. These women thereupon got a counterpane- and wrapped the child up in it, and wanted to lay it on the bed with its mother, but the doctor said there was no use to bother with it, and directed and required them to lay it bach on the table, which they did. After remaining up there some 10 to 20 minutes, they left the room, went downstairs, informed the proprietor of the house, Mr. Hignite, and he thereupon went up to the room where Willie Wilbur and the child were, and called the appellant and Swink out, and’had the doctor register, whereupon he registered in the name and under the circumstances given above.

There was much testimony as to the state of the development of the 'child. From the testimony of some of the doctors and some of the witnesses who saw it it seemed to he an almost, if not fully, developed child. It had long hair, finger and toe nails. Its mouth, nose, feet, and everything were fully developed, and the testimony as to its estimated weight varied from 2% or 3 pounds to as much as 7 pounds. The testimony clearly justified the jury to believe that it weighed from 5 to 7 pounds. The mother testified that no abortion was brought on, but that it was about time for the child to be born, and she claimed that it was a well-developed child. Among other things, Willie Wilbur testified that after the doctor had dropped the baby in the slop jar, and it had remained there some time, the two women servants, Mary Blackburn and Lula Adams, came to the door and knocked. “The baby was crying at that time. The room was closed at that time. He [speaking of appellant] didn’t tie the navel string just then. He waited until there was two ladies come in, Mary Blackburn and Lula Adams [the two women servants]. When they came up, the door was closed, and Mr. Swink was standing with his back to the door, and there was a hole in the door, and Swink had stopped that with paper. The hole was right at the bottom of the door — a knothole. They did not get in when they first came to the door. They knocked two or three times before they opened the door. After they knocked and before the door was opened, Jones, he taken the baby out of the slop jar then and laid it on the table on a cloth, and then Swink he just — the baby was nqked at that time. Its navel string was not tied at that time. The baby was crying at that time and its navel cord was bleeding. When they came in, Mary says to the doctor, says, •‘Call your attention,’ says, ‘You haven’t tied the baby’s navel cord.’ ‘Well,’ he says, ■“There hain’t no use.’ Says, ‘It will die anyway.’ And she says, ‘You better tie it, or I will call an officer and arrest you in five minutes.’ And she picked a twine string up off from the floor and handed it to him, and he tied it. The baby was laying on the table naked at that time. Mary and Lula both said they wanted to wash it and dress it, and they said, ‘No,’ there was not any use, said it would die, and they would not let them wash it and dress it. Mary Blackburn got a counterpane, and wrapped the baby up in it, and wanted to lay it on the bed by me, and the doctor says, ‘No, there hain’t no use to bother her with it. It will die anyway. Just lay it back there on the table.’ And they laid it back on the table. ■ Mary Blackburn and Lula went on out of the room after that. They stayed up there at that time, to my judgment, I would think it was' about 10 or 15 minutes, something like that, and they went out of the room and went on downstairs. I suppose they went downstairs. They went out in the hall, and I never heard them any more. They came back in a short time, and Mr. Hignite came with them that time. The baby was still laying on the table when they returned, and was still crying. Mr. Hignite called Jones and Swink out in the hqll, and I think made the doctor register, I don’t know. Mary Blackburn came in the room at that time and Lula stood at the door. They stayed about five or 10 minutes at that time, something like that. The baby was crying loud and strong at this time. When they left the room that time, that left Dr. Jones and Bill Swink in the room. The baby laid on the table a right smart while after that. The doctor had taken his hand and mashed on the baby’s stomach and on its head. He taken his hands just this way and mashed on its stomach, and then like that was its head, just mashed its head in. Jones taken his left hand and jerked its head back, and then jerked it around. The baby was still on the table at that time. I says to Jones, I says, ■ ‘You are killing my baby.’ He says, ‘Well, it will be the best.’ He says, ‘It will die anyway.’ And Swink says, ‘Yes: it will die anyhow.’ After he put one hand on its breast and the other hand on its chin and jerked its head as I have described, it never cried any more. After that he laid it on the bed by the side of me. When Jones was doing that to the baby, Swink was standing with his back against the door. When he was mashing its head as I have described,' I asked him what was he doing, and he says, T am straightening its head. It is crooked.’ And, when he jerked its head back, I asked him what was he doing, and he said that its neck was crooked; that he was straightening its neck. I told him that he was killing it, and he said, ‘Well, it is the best,’ that it would die. any way, and Swink said the same thing. When he done its head and neck that way, I don’t know just exactly what time it was. It was between 1 and 2 o’clock, the best of my knowledge. That was on Wednesday night. I was in bed during all that time, and was pretty weak, and was flooding awful bad. The blood run off from the bed onto the floor, and run nearly to the door. Q. At any time before your child was born, was there anything brought up in the room by either of them, Jones or Swink, after Jones had come oyer here, if so, what was it? A. Yes, sir; Swink brought a little telescope grip up there, and pushed it in under the bed. He brought the grip up in the room Wednesday evening along in the evening about 3 or 4 o’clock, something like that. He pushed it under the bed back far enough under the bed you could not see it. Just walking in at the door a person could not see it under the bed. After my child was born, Mr. Swink says to the doctor, says, ‘You can’t take it in the grip now;’ says ‘You can’t take the grip now, for,’ he says, ‘Too many have seen it; too many people have seen the baby.’ Lula Adams and Mary Blackburn had been in the room and seen the baby before this conversation. Q. Now, did you hear any conversation between them, Swink and Jones, at any time before the baby was born, with reference to any money? If so, what was it? A. Why, I heard them talking out in the hall. I could not understand what all they was saying. I heard them say something about some money. I could not understand what it was, nor how much nor nothing like that. I understood Jones to say to Swink, says, T will do this for so much money;’ but I could not understand just how 'much money that it was that he was to get. I understood them to talk about $50 at that time — pay him that much at that time— but the amount that he proposed to do it for I could not understand. * *■ * ”

On cross-examination, among other things, she further testified: “The baby was born Wednesday night between 9 and 10 o’clock. Swink and Jones was in the room when it was born. I was in bed; Dr. Jones, the defendant, delivered me of the child. He taken it from me, and dropped it in the slop jar. Swink pulled the slop jar out from under the table, and he dropped it in it. He taken it this way, had one hand under its head and one under its hips, and just carried it right along on his hands that way, and just dropped it right down in the slop jar; had it just about that far [showing] from the slop jar, and just dropped it down. I laid there in bed and looked at them. What more could I do? I told them not to drop it in there, that they would kill it, and they said it would be the best. He did that before he put his hands on its stomach and on its head and neck. 1-Ie taken it right off the bed from me, and dropped it in the slop jar. It was a small slop jar, the top of it was about as big around as the top of that spittoon there. The slop jar was not a bit higher than that spittoon. The slop jar was white just like the inside of that top there, and had a handle at the side of it. The baby was crying at the time he dropped it in the slop jar. I laid there and looked at them, and that is all I said and all I done. There was no light in the room, only the light from that big light out there over the wagon yard, but it was light in the room. After Dr. Jones put the baby in the slop jar, he came back to the bed there, and was trying to take the afterbirth, and, after he took it, he dropped it down in the slop jar after he taken the baby out. He left it laying on the bed right with me, and, then when he took the baby out of the slop jar, he went and got that and put that in. When the women knocked at the door, Swink had his back to the door; had his back right against the door. The afterbirth was on the bed. He just left it laying where he ta.ken it. He taken his fingers and kind of helped the afterbirth along, and while he was doing that the child was in the slop jar. He was just" a few minutes taking the afterbirth. It might have been about five-minutes, something like that. The slop jar was about half full of water. The baby laid in a slop jar half full of water for five minutes while he was removing the afterbirth. Q. Then he left the afterbirth on the bed, and went and took the child out of the slop jar? A. He didn’t until them women come. After he taken the afterbirth, he went and took the baby out of the slop jar, and laid it on the table. He picked it up by its head and feet, just put his hand under its head, and caught hold of its feet, and laid it on the table. Its head kind of swung over his hands. His hands was under its neck both times, when he put it there and when he took it away. The baby laid in the slop jar for five minutes, and cried strong all the time. He had not fixed its navel cord. Pie hadn’t done a thing to it. After he put it on the table, why, he went back then and got the afterbirth from me, and put it down in the slop jar, and then them women came to the door and knocked two or three times, and Swink opened the door, and let them in, and Mary says to the doctor, ‘Doctor,’ says, T will call your attention, you have not tied the baby’s navel cord.’ He says, ‘'Well, there hain’t no use. It will die anyhow.’ And Swink says, ‘Yes; it will die anyway.’ And Mary picked up a string off from the floor and handed it to him, and he tied it, and she wanted to wash and dress the baby and they said, ‘No,’ it was not any use. Dr. Jones says, ‘No; there hain’t any use. It will die any way;’ and Swink says, ‘Yes; it will die.’ And Mary got a counterpane and wrapped the baby up in it, and wanted to lay it on the bed with me, and they said, ‘No; don’t bother her with it. It will die anyway.’ And they stayed in there then I guess 10 or 15 minutes. Mary says, T will go downstairs and get some water, and we will wash and dress the baby,’ and the doctor sáys, ‘No;’ says, ‘There hain’t any use.’ Says it will die. That is all I remember of them saying. Mary Blackburn and Lula Adams went on out there. I don’t remember just what time that was. It was nearly 10,1 guess, maybe after 10 when this occurred. I didn’t have any clock in the room. They went away and left me and Swink and Dr. Jones in the room, and Jones taken his hands and mashed on the baby’s bowels and stomach. The baby was laying on the table when he did that. He taken both of his hands right on its stomach and mashed down on it, and then he taken his hand like that [showing] on its head and .mashed in on it — the soft part of his hand. X was laying there looking at that, and I says, ‘You are killing my baby.’ He says, ‘Well, it is the best. It will die.’ X cried then. Of course I didn’t halloa. I was not stout enough to halloa. When he put his hands on its stomach and took its head this way, I asked him what he was doing, and he said its head was crooked, and he was straightening it. After he did that, the baby cried on, but not as strong as it had been crying. It got a right smart weaker than what it was. It didn’t cry very long after that, about five minutes I reckon, something like that. He taken his hand then and put it here on its breast, and jerked its head up and jerked it around. It was still lying on the table, and he just went up to it then and put his hand on its collar bone right there, and took it by the chin and jerked its head up that way, and jerked it around this way and then around that way. I says, ‘You are killing my baby.’ He says, ‘Well, it is the best;’ he says, ‘It will die.’ And Swink said the same, ‘It is going to die anyhow.’ The baby didn’t cry any more after that, and they taken it off from the table then, and laid it on the bed. This was between 12 and 1 o’clock. I never heard it cry any more after that. The women had been gone out of the room some time when that occurred. I don’t know just exactly how many minutes or anything like that, but they had been out a right smart little bit. * * * ”

She further testified on redirect examination; “Jones wanted to leave that night after the baby was killed. I heard Jones and Swink talking, and Jones says, ‘Get me a little grip;’ and says when it comes .‘why’ says, T will put it in and drop it off by the side of the railroad — drop it out of the window.’ lije said just get a little small grip that it would not be much bigger than a rat. * * * I first saw the grip shown me when Swink brought it into the room, and pushed it under the bed, down at the place where I was stopping. * * * The time I heard the conversation about taking the baby and putting it in a grip, and Jones would carry it off and drop it by the side of the railroad, was on Wednesday afternoon before it was born Wednesday night. I don’t know how Jones knew that it would not be bigger than a rat. * * * When they was talking about carrying it off in a grip, I told them, if it was alive, they was not going to carry it off in no grip, and it was born alive.”

The appellant showed several contradictions in the testimony of the witness Willie Wilbur on this trial from what she had previously testified to in an examining trial and a habeas corpus hearing theretofore, especially about the time of her conception, showing that at different times she made it in January, 1910, and December, 1909.

There were other contradictions also shown. All these matters, however, were for the jury.

There was also much testimony by several physicians and other parties who saw and examined the child after it was dead and before its burial. It then seems to have been exhumed twice, once only one or two days after its interment, and the last time perhaps as long as five days after its first interment.

This testimony clearly justified the jury in finding and believing that the head of the child had been mashed in; that its neck had been broken. One of the witnesses who was present and saw it when it was first disinterred, and when the doctors were examining, expressed it this way; “The baby’s neck seemed to be dark like it was blood shotten all down next to the base, and, as the doctor would handle it, its head would fall in every direction. It had the appearance of being broke. He took it by the hair — it had long hair. He worked its head up and down like a ball with a rubber string to it, something like that. It worked straight up and down. Right around just above the collar bone it seemed to be blood shotten.” This doctor, who examined it on this disinterment, among other things, testified that he made an examination, and said; “Its neck was broken just at the base of the skull where the skull and neck joins there, and there was some discoloration on the breast just about along there, about the collar bone like. It urns purple like there might have been some pressure there, discoloration about the collar bone, right on the breast right along these bones here. * * * Its head had been mashed. The sutures running across here they was mashed down. When I put my hand on it that way, I discovered a little division there like it had slipped down, and I put my hand on it very easily, it went down, and bloody water oozed out of the nose, and, when I would press here, fresh looking blood would come out of the nose, and I noticed then that these sutures here were separated, had been broken down. * * * With a child’s neck broken as I found from my examination of this baby’s neck, that would produce death. I don’t think he would live very long under that condition. * * * Q. If by placing one hand on the breastbone at the point where you saw the bruises and taking the child then by the chin with the other hand, the child laying on the table, and by jerking its head back and to one side, to either side, would that break its neck, could it be broken that way? A. Well, I presume it could; but, if its head was lying on the table, it would be very difficult to break it in that position, but if its head was off the table so it could be drawn back, do it very easily, especially being drawn back and twisting its bead, there would be so many ways a person might do it, throw it back and twist the head or throw it far enough back it would, I presume, un-joint the bones. This was considerably apart. I showed it to the gentlemen who were present. I just took hold of the head that way and just took it up, and you could see, you ■could insert your finger. X didn’t cut down in the neck. It was too plain a case, because I didn’t think it was necessary to cut down ■on the neck, because just lift it that way, and its head was just limber that way, just bend it around that way.”

■ Another one of the physicians who testified as to the examination of the child on its second disinterment showed that they cut down on the baby’s neck and found it was broken at the base of the skull. The verte-brje bones were separated something like three-fourths of an inch, conservatively speaking. The neck was broken right where the backbone joins on to the skull, just at the base. Others who saw the child on this occasion testified substantially as some of these doctors.

Besides the corroboration of the witness Willie Wilbur, as shown by the testimony of the doctors who examined the child, and others who were present and saw this examination, she was also corroborated in her testimony by the two servant women, Mary Blackburn and Lula Adams, as to what was done and said in their presence and hearing on the occasion, and especially the two after the birth of the child, when they were present that night after its birth. One of these women also corroborated her about Swink having carried to her room on Wednesday evening the telescope grip, she having seen him take it in at a door — an unusual way to go into the house. We deem it unnecessary to recite their testimony.

The appellant testified and disputed Willie Wilbur practically in all her testimony about what was done and said by him, her, and the two servant women as she and they had testified was done and said. He contended by his testimony that he was merely called as a physician, and simply and solely acted .as such in the case of the confinement of the woman. He claimed that he had known Swink and was intimate with him for several years before this occasion; that he had known Willie Wilbur for only a short time before this occasion. He claimed to have seen her and Swink at a town in Oklahoma .on Sunday evening prior to their going to Paris, Tex., and had examined her on that occasion. He had a woman and her daughter at this town in Oklahoma to support his testimony as to his and Willie Wilbur and Swink being together on this occasion. Willie Wilbur disputed all of his and their testimony on this point. The state introduced several witnesses who testified that they knew the general reputation for truth and veracity of the said two Oklahoma women, and that it was bad. It is unnecessary to state further of the testimony.

One of appellant’s contentions in the ease is that the testimony is not sufficient to sustain the verdict. We have carefully gone over and considered the evidence time and again, and it is our opinion that the testimony, not only amply sustains the verdict, but we think it would have sustained a conviction of the appellant for .a higher offense, or at least for a much greater penalty than was inflicted upon him.

Appellant has 20 bills of exceptions in the record, all of which are presented by his brief. We will give the whole of the first, omitting the style of the case, the court, and the signature of the judge: “Be it remembered that on the trial of the above-entitled cause the following proceedings were had, to wit: Willie Wilbur, a witness for the state, being on the stand, the following question was asked said witness by the district attorney: ‘Who came with you when you came to Paris?’ Defendant objected to the question on the ground that same was irrelevant and immaterial, and was a transaction that occurred between the witness and Bill Swink in the absence of the defendant. The court overruled the objection, and permitted the witness to answer the question, as follows: ‘Bill Swink came to Paris with me. We got here on Sunday night, and stopped at the Hignite rooming house.' Counsel for defendant then and there in open court excepted to the action and ruling of the court, and here presents this, his bill of exception No. 1, and prays that same be allowed by the court, and made a part of the record in this cause.” In allowing the bill, the judge thus explained it: “Bill given with the explanation that the testimony shows by defendant himself that he came to Paris at the invitation of Swink, and that he saw the witness and Swink at Hugo some day or two before he (defendant) came to Paris.”

The next four bills of exceptions are equally as defective as this. They are to some isolated question to, and answer of, the same witness. The second is, “What was your condition with reference to being in a family way?” to which she replied, “Xes; I was in a family way, and it was nearly time.” The judge in allowing this bill qualified it by stating that the defendant himself testified that he examined the witness Willie Wilbur at Hugo before he came to Paris, and found she was pregnant. The third is, “When did you become acquainted with Bill Swink, alias Gentry?” to which she answered in October, 1909, that she was living on his place. The judge qualified this bill by stating that the testimony of this witness shows that Swink was the father of her child. The fourth is, “Who was the father of your child? A. Bill Swink.” This bill was qualified as follows: That the defendant himself testified he examined the witness and found her pregnant. The fifth is, “Yon say that, after they broke its neck, they put it in bed with you, and you then went to sleep? A. Yes, sir.” This bill was qualified by the judge as follows: “That the witness had testified that the defendant put his hands on the collar bone of the baby, and jerked its head up, and jerked it around, and that it was still lying on the table, and he went up to it and put his hand on its collar bone right there (pointing to her own person), and took' it by the chin and jerked its head up that way (showing how he jerked its head with her own person), and jerked it around this way, and then around that way (again showing how it was done), and she said to him (defendant), ‘You are killing my baby,’ and he says, ‘Well, its the best. It will die.’ And Swink said the same, ‘It’s going to die anyhow.’ The court will see from the testimony of Drs. Moody and Lewis that the child’s neck was broken.”

The sixth, seventh, and eighth bills are to several questions and answers propounded to the witness Hignite. In the sixth, after he had testified to having the defendant sign his name to the hotel register, he was asked as to the condition of the defendant and one Bill Swink at that time, to which he answered that they looked a little bit excited, and asked him why he had done that. This bill was qualified by the judge as follows: “That when the district attorney asked the witness about the defendant coming to his house, and he and Swink registering, he then answered as above, and he also testified that he told them (defendant and Swink) that they had not registered, and that, if there was anything crooked about it, he would see that they paid for it.”

The seventh is that he was asked how Bill Swink registered at his house for himself and Willie Wilbur; she being registered under the name of Annie Ernest. lie answered that Bill Swink had arrived on Tuesday afternoon and the defendant registered •for himself (meaning Bill Swink) as J. G. Gentry and the woman as Miss Annie Ernest. This bill was qualified by the judge as follows: “That the defendant and Swink were together at Hugo a day or two before they came to Paris with the witness Willie Wilbur, and defendant had examined her, and found her pregnant, and that he came to Paris at the solicitation of Swink. The court will observe that this thing about the registering of their names was before the alleged killing, and the defendant himself testified that they told him they had registered there from Texarkana, and that he gave one of the prescriptions for J. G. Gentry, and knew his name was Swink.”

The eighth is said witness was asked whether or not the defendant paid his bill when he left. The witness replied that he did not. This bill was qualified by the judge as follows: “That the defendant had testified he left town (Paris) without his breakfast on the morning after the night the child was alleged to have been killed, and the district attorney asked him, ‘Left without paying any bills?’ and he answered, T made arrangements for my bills to be paid. I made arrangements with Lula (Mrs. Adams), and told her that Mr. Swink would pay the bill, and she said it was all right.’ ” Each of these bills are equally as defective as the first five, and cannot be considered by this court.

The ninth, tenth, and eleventh are as to questions and answers of the doctors, two by Dr. Moody and one by Dr. McCuistion. The ninth is: “I will ask you doctor whether or not by placing one hand on the breast at the point where you saw the bruises, and taking the child by the chin with the other hand, the child lying on the table, and by jerking the head to one side, or either side, would that break the neck, could the neck be broken that way?” to which he answered, “I presume that it could.” This bill was qualified by the judge as follows: “That witness had testified that he was a practicing physician and had been such for 56 years, and that the child’s neck had been broken, and that there was discoloration on the collar bone and breast, and it was purple like there might have been some pressure there. The witness answered as above set forth, and in the same sentence further answered: ‘But, if its head was lying on the table, it would be very difficult to break it in that position.’ ”

The tenth is, after stating that he did not cut into the child’s neck on the occasion when it was 'first exhumed, he was asked why he did not cut into its neck, to which he answered it was too plain a case, because he did not- think it was necessary to cut down into the neck. “I could tell it was broken without cutting down into it.” In allowing this bill the judge qualified it as follows: “When counsel for state asked the question, the counsel for defendant said: ‘We object to it being too plain a ease, and we except to that testimony.’ And the court then asked what it was the witness, said, and counsel for defendant then said: ‘He (the doctor) said it was too plain a case for him to cut into. And I object to it. It is a matter that could be detailed to the jury, and let them determine about that.’ Counsel for defendant never asked that it he excluded from the jury. The witness simply gave that as his reason why he didn’t cut down into it.”

The eleventh is to the testimony of Dr. McCuistion, wherein the defendant asked him whether or not it was a fact that any reputable physician, being called upon to deliver any illegitimate child, would attend the case, and would also consider it part of his duty to conceal the same, and also the identity of the woman, in order to save the shame of the woman. This was objected to by the state, and the witness not permitted to answer. The appellant claimed that he expected the witness would testify that all reputable physicians would accept such a call; that they would go and see any woman in labor at any time and place, and would do everything in their power for the woman and the child, and also would do everything to keep the matter a secret.

These bills are equally as defective as the others, and cannot be considered by this court. James v. State, 138 S. W. 612; Conger v. State, 140 S. W. 1112; Baker v. State, 143 S. W.-, and other cases recently decided; Whites’ C. C. P. §§ 857, 1123.

The twelfth bill was to this question, asked by the defendant’s counsel of defendant’s witness Charles Minton; “Now, I will ask you whether or not it is a fact that the place where they lived (referring to the state’s witnesses Mary Blackburn and Lula Adams), whether complaint has been made of the kind of place they were running, and whether or not it is a fact that men have been going there at all times of the night to such an extent that you were called upon to move them?” On objection by the state, the court sustained it, and the defendant stated that he expected the witness to state that complaint had been made to him of the character of the house the women were running, and that he had notified them that they had to move, and they did move. The court allowed this bill, with the explanation that the defendant proved by this same witness that he knew the general reputation of these two women for chastity and morals, and also the reputation of the house they occupied and lived in, and that it was bad.

The thirteenth was a question to the defendant’s witness Carter, wherein he was asked the same question as the above question to Minton, and it was stated that the defendant expected to prove the same by him as he did by Minton. The bill’was allowed with the same qualification to this as to the twelfth bill above.

The fourteenth was that after defendant’s witness Neal had testified that he had been employed to represent Willie - Wilbur in reference to her claim as a member of the Choctaw Tribe of Indians before the Land Commission of the Indian Territory, and that she was registered under the name of Willio Ernest, and that he had made trips to Muskogee in connection with said business, he was asked by the district attorney on cross-examination, “Q. Who first talked to you about making the trip up there;- that is, the time you speak of?” which was objected to as not in rebuttal of anything- they had brought out, and the answer would be immaterial and irrelevant. The court overruled the objection, and the witness answered that his firm had been employed by Bill Swink to represent Willie Ernest in that matter. The court in qualifying the bill stated that from this witness’ testimony the court will see that he told about going up to Muskogee in his direct testimony.

The fifteenth bill shows that the defendant having been indicted as W. A. Jones, alias G. D. Wilkins, at the beginning of the-trial, appellant’s counsel stated to the court that his name was W. A. Jones; that he had always gone by said name, and had never claimed to be G. D. Wilkins, or gone by said name; that he had no alias, and asked that he be prosecuted under his real name, which is W. A. Jones; that the court stated he would enter an order directing that defendant be prosecuted under his name, W. A. Jones, but, after making such order in open court, the court failed to enter such order, and in his charge to the jury referred to defendant as W. A. Jones, alias G. D. Wilkins; that defendant in his motion for a new trial, by the fourth ground, raised said question, and asked that a new trial be granted on account of these matters. The court overruled the motion for new trial and defendant excepted. This bill is allowed by the judge with this explanation: “That the jury to try this case was obtained late one evening, and the district attorney read the indictment, and the defendant entered his plea of not guilty, and the court then adjourned until next day, and the next day the state commenced to introduce its testimony, and, while the district attorney was examining a witness, the district attorney called the defendant Jones, alias G. D. Wilkins, and then it was that counsel for defendant suggested that defendant’s name was W. A. Jones, and asked that he be prosecuted under that name alone, and that his name was not W. A. Jones, alias G. D. Wilkins. The defendant himself testified that he registered at Hignite’s as ‘G. D. Wilkins.’ ”

It will be seen therefrom that no exception was taken during the trial of the cause as to the appellant being called W. A. Jones, alias G. T>. Wilkins, anywhere in the examination of the witnesses, the trial of the cause, or the charge of the court, and it was too late to raise and present this question on motion for new trial.

Besides this, the appellant is in no wise shown to have been injured under the circumstances stated.

The sixteenth bill complains that on appellant’s motion for a new trial he offered in evidence the special venire list and list of jurors impaneled to try said cause, showing that the name of W. O. Brackeen was drawn upon said venire, and that W. 0. Brackeen was served with the venire writ and summoned to serve upon said case as a juror, and that no person by that name was so drawn or summoned. The verdict of the jury was also introduced which was signed, “W. 0. Brecheen, Foreman.” It also appeared upon the hearing of said motion for new trial tliat the person so acting as foreman answered the name of W. 0. Braekeen, and was duly qualified, selected, and sworn as a juror in said cause; that the court overruled the motion for new trial, and the appellant excepted. This bill was allowed by the court, with this explanation: “That W. 0. Braekeen was drawn on the venire and served upon the jury, and was the foreman of the jury, and signed the verdict, and signed it W. 0. Braekeen, and he testified by affidavit that he signed the verdict in this case, and the said W. 0. Braekeen handed the verdict to the court when the jury came back after considering the case. The controversy in this bill arises from the fact that Mr. Braekeen signs his name so that it looks somewhat like ‘Breeheen.’ Counsel for defendant had known Mr. Braekeen for years, and knew that he was on the jury, and accepted him as one of the jurors to try the ease, and were present when the verdict was brought in, and saw him hand the verdict to the court, and heard the verdict read and Mr. Brackeen’s name read out by the clerk as foreman, and made no objection whatever.”

It was too late to make any such objection on motion for new trial. •

Besides, with the explanation of the court, no injury whatever is shown to have occurred or could possibly have occurred to the appellant by reason of the misspelling, if so, of this juror’s name.

The last four hills, 17, 18, 19, and 20, are objections to the claimed remarks of the attorneys for the state in argument to the jury. It is unnecessary to quote these claimed remarks. On the hearing of the motion for new trial, the court heard evidence thereabouts, and the attorneys for the state denied, in substance, making the remarks as claimed by the bills. The court thereupon refused to allow the bills, showing in explanations to each of them, in substance, that the remarks were either not made, or, where any of them were in substance made, they in no way injured the appellant, and showing, also, that the evidence justified the remarks where they were made.

The appellant asked no special charges to exclude any or all of these claimed remarks in argument by the state’s attorneys. The verdict of the jury fixed the penalty of the appellant at murder in the second degree, and gave him the lowest penalty thereunder.

No injury whatever is shown to have occurred by these remarks, even if they were made, and, by the appellant failing to ask special charges to exclude them, they were certainly at the time not deemed of sufficient importance to do this, which was required, under the law, in order that the questions might be properly considered by this court. We desire to say that, notwithstanding the bills of exceptions above quoted present questions so defectively that this court cannot consider them, yet,- in connection with the record, in our opinion not one of them presents any reversible error, even if the questions attempted to be raised thereby had been properly presented.

There are about 30 grounds in appellant’s motion for a new trial. In them he complains of the various matters shown by his bills of exceptions above noted, and, in addition thereto, the refusal of the court to give two special charges requested and complains of the court’s charge in some particulars.

Among the complaints of the charge of the court is one to paragraphs 10 and 11, as to the charge of the court about murder in the first degree. As the appellant was acquitted of this and given the lowest penalty for murder in the second degree, whatever errors, if any, may have been in said charge about murder in the first degree, cannot, and did not, affect the appellant.

The fifteenth, sixteenth, and seventeenth paragraphs of the court’s charge are as follows:

“(3) If you believe from the evidence beyond a reasonable doubt that the defendant with his implied malice, as that is here-inbefore explained, in a passion aroused without adequate cause, did either alone, or acting together with Bill Swink as a principal, as principal is hereafter explained to you, in Lamar county, Tex., at or about the time charged in the indictment, unlawfully kill and murder the infant child of Willie Wilbur by then and there breaking its neck and disjointing and dislocating the neck of said infant child by twisting the head and neck and pulling the head and neck of said infant child with his (defendant’s) hand and fingers, and if you further so believe that the said infant child was without a name, and if you believe from the evidence beyond a reasonable doubt, that the defendant either alone, or acting together with Bill Swink as a principal, as that term is hereinafter explained to you, did, in Lamar county, Tex., at or about the time charged in the indictment, with his implied malice aforethought (as that is explained), in a passion aroused without adequate cause, unlawfully kill and murder the infant child of Willie Wilbur by pressing and mashing the head and bowels of said infant child with his hands and fingers, and by dropping and placing child into a night glass or slop jar, and you further so’believe that the said infant child was without a name, then you will find the defendant guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period the jury may determine and state in their verdict, provided it be for not less than five years, but, unless you do so believe, you will acquit the defendant.
“(16) All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or inore persons. the true criterion for determining who are principals is, Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all.
“(17) Before one can be held to be a principal, he must not only have been present when the offense was committed, but must have, in addition thereto, aided, encouraged, advised, or agreed to the commission of the same, with a knowledge of the unlawful intent of the person actually committing it.”

The first complaint of the fifteenth phragraph is to these words twice occurring therein, “in a passion aroused without adequate cause,” because the evidence did not raise any such question. These words should not have been in this charge. We can only account for their being there by presuming that the judge used one of the printed forms of charges which are so commonly used by judges, wherein the question of manslaughter is raised and submitted, and doubtless, as that question could not and did not arise in this case, the judge in the court below inadvertently failed to strike out those words. It was expressly held by this court in the case of Combs v. State, 52 Tex. Cr. R. 617, 108 S. W. 650: “We should not be inclined to reverse the case on the occurrence of these words in what is otherwise, in respects complained of, a most admirable charge, but we suggest to the court in view of another trial that this language should be omitted.”

In the Combs Case these words were used, “in a sudden transport of passion aroused without adequate cause.” Many cases whore the words “sudden transport of passion” were used have been reversed because of the use of such words when manslaughter arose and was submitted, but in this case, the appellant having received the lowest penalty for murder in the second degree, the use of the words complained of above could not be calculated to injure, and did not injure, the appellant. Besides, if the said words improperly used had any effect, at all, it was to place a greater burden on the state than ought to have been placed thereon, and inured to the benefit of the appellant, instead of against him. Article 723, C. C. P.

Complaint is also made of said paragraph 15 because there was no evidence tending to show that Swink killed the child, or, if so, that appellant was present or acting in such a manner as would make him a principal to the alleged crime.

Complaint is also made that- the court erred in submitting to the jury whether or not the child was killed by having been thrown in a slop jar or night glass, or by having its head and bowels mashed and pressed, claiming that the evidence raised no such issue, and there was no evidence that such injuries resulted in its death.

Complaint is also made to the sixteenth and seventeenth paragraphs charging on the law of principles because the evidence did not raise such issue as to appellant, and it is claimed the jury was probably misled in believing that, if Swink or Willie Wilbur killed the child at any time on the night of the alleged killing, appellant would be guilty as a principal, and to infer that the court was of the opinion that such was a fact, and that said paragraphs are mere abstract propositions, and do not contain correct statements of the law of principals, nor do they tell the jury under what circumstances and conditions defendant would be guilty as a principal in the event the child was killed by some one else, and that said charge does not tell the jury that, in order to be guilty as a principal, appellant must have been present and aiding the commission of the offense, and, if not present and so aiding, the jury were left to infer that appellant would have been guilty as a principal, although not present or doing anything in aid of Swink or whoever was committing the crime.

Prior to the enactment of article 723, C. C. P., in construing that article, as it had theretofore been, in connection with article 715, this court had reversed cases where mere technical errors of commission or omission had been in the charge of the court. The Legislature in amending article 723, as it was amended by the act of March 12, 1897, expressly enacted that the judgment shall not be reversed, unless the error appearing from the record was calculated to prejudice the rights of the defendant; whereas, before then, said article, as it stood, seemed, and was construed, to require a reversal whether such error was calculated to injure or not. Even before this article was amended, the Supreme Court in Wright v. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant, and cases prior to Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094, which held that where erroneous charges were given, if excepted to, even though such injury inured to the benefit of the accused, required a reversal, were expressly overruled by this court. In Briscoe v. State, 37 Tex. Cr. R. 464, 36 S. W. 281, on a trial for murder, where the evidence established murder in the first degree, it was held that defendant could not be heard to complain that the court gave him a charge upon murder in the second degree; also, in Gonzales v. State, 35 Tex. Cr. R. 339, 33 S. W. 863, 60 Am. St. Rep. 51, this court held that a defendant who had been convicted of manslaughter could not claim any possible injury from a charge on mutual combat, even when such charge was not required by the evidence, and that a charge upon imperfect self-defense, though not called for by the evidence, could do no possible harm to appellant where there was no self-defense in the case. It has also been held in many eases by this court that, even though a specific portion of the charge of the court may be erroneous, when it is more favorable to the accused than he was entitled to upon the particular questions, he had no ground to complain. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Scruggs v. State, 35 Tex. Cr. R. 622, 34 S. W. 951; Delgado v. State, 34 Tex. Cr. R. 157, 29 S. W. 1070; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233; Daud v. State, 34 Tex. Cr. R. 460, 31 S. W. 376; Loggins v. State, 32 Tex. Cr. R. 364, 24 S. W. 512; Lujano v. State, 32 Tex. Cr. R. 414, 24 S. W. 97; Boren v. State, 32 Tex. Cr. R. 637, 25 S. W. 775; Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094; Kelley v. State, 31 Tex. Cr. R. 216, 20 S. W. 357; Sutton v. State, 31 Tex. Cr. R. 297, 20 S. W. 564; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758; Wolfforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741; Gonzales v. State, 31 Tex. Cr. R. 508, 21 S. W. 253; Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; Surrell v. State, 29 Tex. App. 321, 15 S. W. 810; Hawthorne v. State, 28 Tex. App. 212, 12 S. W. 603; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; McCleaveland v. State, 24 Tex. App. 202, 5 S. W. 664; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991.

We believe that these cases and many others later decided to the same effect and the proper construction of said article 723, as it now stands, does not authorize this court to reverse the judgment in this ease, even though there may be some technical omissions or commissions in the paragraphs of the charge of the court in this case, and especially is this the case when the appellant has requested no charge on the subject, and thereby not given the lower court an opportunity to correct any such commission or omission before the verdict of the jury.

The only other complaint of the charge of the court and of the refusal of special charges requested which are of sufficient importance to require notice by us is the complaint of appellant in his motion for new trial as to the charge given by the court, and the refusal of his charge on the question of whether or not Willie Wilbur was an accomplice, and whether or not these charges submit properly the question of the necessary corroboration of her if she was an aceom-l>liee.

After a most careful consideration of the evidence on this subject, we believe that in no proper consideration of the evidence does it tend to show that she was an accomplice in the killing of the child, and while she was necessarily present at the birth and for several hours before the death of the child, whether it was killed or died from natural causes, she is nowhere shown by any direct testimony, or by any proper deductions from any of the testimony, to have done or said anything to indicate that she in anyway participated in the killing of the child. There is some suggestion by appellant that she may have been guilty of abortion. If' appellant had been charged with this offense, this court has repeatedly held that she would not have been an accomplice therein. Watson v. State, 9 Tex. App. 238; Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602, and other cases.

The first special charge requested by appellant, omitting the heading and signature thereto, was; “I charge you that, if you do believe that the child’s neck was broken as alleged in the indictment, this would not be sufficient to corroborate the witness AATlbur.” The court refused this, but doubtless because of the request therefor, in paragraph 23, charged:

“The fact, if it is a fact, that the child's neck was broken as alleged in the indictment, then this would not be sufficient to corroborate the witness AVilbur.”

In our opinion this charge should not have been given, 'but that fact should have been left to the jury for its consideration on the subject, instead of prohibiting their doing so, but appellant, having asked and the court at his instance having given this charge, certainly has no ground to com plain thereof.

The court among other charges gave these:

“If you believe tne infant child was prematurely born, and that its death was caused thereby, or if you have a reasonable doubt thereof, you will acquit the defendant.
“If you believe that the child died from natural causes, or if you have a reasonable doubt thereof, you will acquit the defendant.”

The other special requested charge by appellant and refused by the court, omitting the heading and signature thereto, was as follows: “1 charge you that the evidence in this case shows that AVillie AVilbur, the witness ■ introduced by the state in said cause, is an accomplice, provided you believe that the child’s neck was broken as alleged. I therefore charge you that unless you believe that said AVillie AVilbur is corroborated in her testimony in said cause, though you should believe that said offense was committed, and that the defendant committed it, yet you cannot convict the defendant upon her testimony, unless you believe same has been corroborated by other testimony, other than that a crime was committed, if there was any committed.”

The court on the subject of accomplice and the corroboration of her testimony gave these charges:

“A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. An ‘accomplice’ as the word is here used means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before, at the time, or after the commission of the offense, and whether or not she was present and participated in the commission of the crime.”
“Now, if you are satisfied from the evidence that the offense charged was committed, and you further believe that the witness Willie Wilbur was an accomplice, or you have a reasonable doubt as to whether she was or not, as that term is defined in the foregoing instructions, then you are further instructed that you cannot find the defendant guilty upon her testimony alone, unless you first believe that her testimony is true, and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of Willie Wilbur’s testimony tending to connect the defendant with the offense charged, and the corroboration is not sufficient, if it merely shows ithe commission of [the offense charged.”
“Corroboration as to matters immaterial, and which do not tend to connect the defendant with the commission of the offense charged, is not sufficient.”

And paragraph 23 of the court’s charge above copied.

As stated above by us, we believe that Willie Wilbur was not an accomplice, but, as the appellant reguested charges on that subject, even going to the extent of requesting the court to specifically state that she .was an accomplice, the charge of the court on the subject was substantially correct, and much more favorable to appellant than was requested by him, except that he did not charge in so many words, as requested, that she was an accomplice.

It has been uniformly held by this court that unless the evidence, without doubt, shows that a witness is an accomplice, the court must submit that question to the jury to find, and the court properly did so in this case.

None of the criticisms of the court’s charge on this subject are well taken, nor are they of sufficient importance to require a reversal of the judgment in this case.

We have given this case thorough study and investigation. We, like appellant’s attorneys, cannot fully understand from the record why the jury did not convict the appellant of murder in the first degree, and even inflict the death penalty. The record convinces us that beyond question he unlawfully killed this child, and that he was not convicted of a higher crime or given a severer punishment results to his benefit, and not to his injury. The record in our opinion shows no such error as would authorize or justify this court to reverse this case.

Hence it will in all things be affirmed. 
      
      
         Rehearing pending.
     