
    RUEDA v. STATE.
    (No. 9344.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Nov. 11, 1925.)
    1. Criminal law <§=>1 137(1)— Defendant agreeing to trial of cotfefendant first, contrary to written agreement with latter’s attorneys, cannot complain.
    Where defendant agreed to trial of code-fendant first, court did not exceed authority under Code Or. Proc. 1911, art. 728, in not trying defendant first, as provided by prior written agreement with defendant’s attorneys, and defendant could not complain.
    2. Homicide <§=>262 — Permittipg state to place pistols and other articles, used by defendants, in view of jury, Jsefore introduction in,evidence, held not error.
    Permitting state, in murder trial, to place pistols, clothes, bullets, and cartridges on table in view of jury before they were identified and introduced in evidence, held not error.
    3. Criminal law <@=>419, 420(8) — Testimony as to defendant’s statement that he was in holdup in which murder was committed held admissible.
    In trial for murder committed in attempt to rob, testimony of accomplice’s sister that defendant was brought to her house wounded on day of attempted’ robbery, and told her that he was in holdup, held admissible and not hearsay.
    4. Homicide <@=>174(2) — Testimony as to seeing defendant and codefendiant, already convicted, in houses In same vicinity, after killing, with bullet-shattered legs, held admissible.
    In trial for murder committed in holdup, testimony as to seeing codefendant and defendant on successive days after killing, in houses in same vicinity, with legs shattered by bullets, and testimony as to taking cartridge from co-defendant, who had been convicted" and sentenced to death, held admissible, in view of' evidence that both were on scene of and participated jointly in holdup, and codefendant’s confession introduced by defendant’s counsel.
    5. Homicide <@=>174(2, 6) — Testimony as to defendants’ wounds, condition of clothing, and finding of cartridges in possession of one of them, held admissible as tending to connect them with commission of homicide.
    In trial for murder committed in attempted holdup, testimony as to finding cartridge in codefendant’s possession after killing, character of his and defendant’s wounds, and condition of their clothing, held admissible as tending to connect them with commission of offense charged.
    6. Criminal law <§=>719(1). — District attorney’s statement to court that he could show flight of either of two parties shown to be acting together held not error.
    In trial for murder, committed in attempted holdup, district attorney’s statement to court in jury’s presence that, “if we could show these two parties were acting together, which we have, we could show the flight of either party afterwards,” held not error, in view of code-fendant’s confession, introduced by defendant, and other evidence, showing that defendant participated in and fled from scene of holdup in car with codefendant and other participants.
    7. Criminal law <§=>719(1) — District attorney’s remarks to court, in arguing admissibility of evidence, not reversible error, though not warranted by evidence.
    District attorney’s remarks to court, in arguing question that, if he could show that defendant and another were acting together, he could show flight of either afterwards, held not ground for reversal, even if not warranted by evidence, as it can hardly be supposed that jury would take such arguments and statements to court as evidence in case.
    8. Homicide <§=>169(2) — Admission of testimony as to having seen codefend'ant cash pay check at place of holdup held not error.
    In trial for murder committed in attempted holdup, admission of testimony as to having seen codefendant cash pay check at place of holdup held not error; it being immaterial whether defendant knew that bank had been in habit of paying checks at such place.
    9. Criminal law <§=>517(4) — Defendant’s confession held properly admitted.
    Defendant’s confession held properly admitted over objection that it was not shown to have been voluntary in view of interpreter’s testimony as to circumstances under which it was made.
    10. Criminal law <§=>1169(12) — Admission of confession held harmless, in view of testimony as to defendant’s admission of complicity in crime.
    Admission of defendant’s confession held harmless, in view of other testimony as to his admission to witness that he was in holdup wherein homicide was committed.
    11. Criminal law <§=>642 — Interpreter’s oath that he properly interpreted and translated confession sufficient, though he was not sworn.
    Under Code Cr. Proc. 1911, art. 810, interpreter’s oath that he properly interpreted and translated defendant’s confession was sufficient to authorize its admission, though interpreter was not sworn.
    12. Criminal law <@=>671 — Refusal to permit defendant to question interpreter as to his confession ito jury’s absence held not error.
    Refusal to permit defendant to interrogate interpreter and stenographer as to his confession in jury’s absence held not error, as forcing him to prove his statement to interpreter that he served term in penitentiary; it being his privilege to take bill of exception.
    13. Criminal law '<@=>396(2) — Permitting state to question witness as to defendant’s statement, brought out by his counsel, held not error.
    Where defendant’s statement, in conversation at time before that of confession, that he had served term in penitentiary, was brought out by defendant’s counsel, court did not err in permitting state to ask witness where and when he obtained such information, and what was said in such conversation concerning it, in view of Code Or. Proc. 1911, art. 811.
    14. Criminal law <@=>721 (3) — State’s attorney’s statement to jury held not objectionable as ■ referring to defendant's failure to testify.’
    , State’s attorney’s statement in argument to jury, “what does the defendant say about this,” followed immediately by reading from defendant’s- confession, held not objectionable as referring to defendant’s failure to testify.
    15. Criminal law <@=>722(3)— District attorney’s query as to why dlefendant and other bandits carried weapons to scene of homicide Ef they did not want them presented before jury held not prejudicial.
    District attorney’s statement to jury, “If you didn’t want all this artillery presented here before jury, why did you and all these other bandits carry it up there,” held not prejudicial to defendant, where there was no question from record but that defendant and codefend-ant had pistols on scene of homicide.
    16. Criminal law <@=>723( I)— District attorney’s argument to jury held not error as referring to defendant’s attorneys as Bandits, nor prejudicial if so construed.
    District attorney’s "argument, “If you didn’t want all this artillery presented here before the jury, why did you and all these other bandits carry it up there,” held not error as referring to defendant’s attorneys as bandits, nor prejudicial if so construed.
    17. Homicide <@=>235 — Conviction of murder held warranted by evidence.
    Evidence held sufficient to warrant conviction of murder committed in attempt to rob.
    18. Criminal law <@=>742 (I) — Whether defendant was in bandits’ car at scene of killing held for jury.
    In trial for murder, committed in attempted holdup, testimony of defendant’s witnesses that defendant was not in bandits’ car at scene of homicide merely raised issue for jury, who could believe such testimony or that of state to contrary.
    On Motion for Rehearing.
    19. Criminal law <@=>621 (2) — Failure to try defendant first held not abuse of discretion because his attorneys believed that codefend-ant would be convicted capitally.
    That defendant’s attorneys believed that codefendant, who was leader in holdup resulting in homicide, would be convicted capitally, held not to show abuse of discretion in not trying defendant first, pursuant to written agreement with codefendant’s attorneys.
    20. Criminal law <@=>671, 736(2) — Evidence as to voluntary character of confession should be received in jury’s presence.
    While trial court primarily decides competency of confession, it becomes jury question if voluntary character is attacked, and evidence on such issue should be received in jury’s presence. /
    21. Criminal law <@=>1111(3) — Court’s qualification of bill of exception cannot be first attacked on appeal.
    Court’s qualification of bill of exception to admission of testimony cannot be attacked for first time on appeal.
    Commissioners’ D'ecision.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Agapito Rueda was convicted of murder, and appeals.
    Affirmed.
    Robert E. Cunningham and W. Joe Bryan, both of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant, Manuel Villa-real, Jose Carrasco, and Alejo Menjarez were indicted jointly in the district court of El Paso county for murdering William Meers by shooting him with a pistol. Appellant was convicted, and his punishment assessed at death.

The record in this case, briefly stated, shows the facts to be that the deceased, Meers, W. L. Laird, a C. A. Bittick, and a Geo. H. Reed started from the American Trust & Savings Bank in El Paso to near what is known as the Van Noy building, with about $15,000 with which to pay off the checks of the Galveston, Harrisburg & San Antqnio Railroad hands, as had been the custom of said bank for many months prior thereto. The evidence of the state, as shown by the record, is that the defendant and five other parties, one of whom was named Carrasco, formed a conspiracy to take the money in question and rob the parties thereof. In the testimony, there is some conflict as to how m'any parties were in the bandit bunch, as some of the testimony tends to show that there were four and some six. Carrasco had formerly worked for the railroad company, and knew of the custom' as to paying the railroad hands in the manner above mentioned by the bank. The parties with the money went from the bank to the Van Noy building in an automobile, and, when they had left the automobile and started into said building with the money, one of the parties in the holdup, denominated in the record as a bandit, threw his pistol down on Laird, the man with the money, and it was fired, and immediately the fight opened up between the parties in the car and the said named bandits in which Meers and a Mexican by the name of Bopez were killed, Bittick and Reed wounded, and the appellant and Carrasco were wounded by being shot in their legs. The money was recovered at or near the place where it was dropped, and the alleged bandits fled from the scene of action. This is a sufficient rendition of the facts as stated in the record as a preface for the discussion of the points in question.

In bill of exception No. 1, complaint is made to the ruling of the court in not trying the appellant first on a motion to sever, instead of his codefendant Carrasco; the bill shows that the appellant and his attorneys and the 'attorneys for said Carrasco had agreed in writing that appellant be tried first. When the cases were called for trial,' it appears that said motion for severance was presented, and the court stated he had been informed by the district attorney that appellant desired to be tried after Carrasco instead of being tried first, and inquired of the defendant if such was his desire, and, if it were, that he would pass his case until after the trial of Carrasco, to all of which the appellant agreed, and said, “Try Carrasco first then.” The contention of appellant in this instance is that the court exceeded his authority under article 728, O. C. P., in not observing the written agreement and in not permitting the appellant to be tried first. We are unable to agree with this contention, and believe that, if appellant agreed to it, as the bill shows, to have Carrasco tried first, regardless of said written agreement, no one could complain at the action of the court unless it be Carrasco. In any event, we fail to see any injury done to the defendant in this instance.

In bill No. 3, complaint is made' to the action of the court in permitting, the state to place the pistols, clothes,' bullets, and cartridges on a table in view of the jury, that were contended by the state to have been used by the defendants in the attempted holdup and attempted robbery, before they had been identified and introduced in evidence. The qualification made by the court to this bill shows that each and all of the above said articles were dug up and entered in evidence. We fail to see any error in the action of the court in this instance, because, if said articles were in view of the jury and afterwards introduced in evidence and exhibited to them, it certainly could not be harmful to the defendant, as the jury had full view of all of said articles complained of, and we are unable to conceive how there could be any difference in bringing them in one at -a time and introducing them in evidence or in bringing them all in at once and afterwards admitting them. The effect appears to us to be the same, and we overrule this contention.

In bill No. 4, complaint is made to the action of the court in permitting the state to prove by the witness Maria Jesus -Garcia that, on the day of the holdup and alleged attempted robbery, she heard about the attempted holdup and the trouble, and on said day before she heard of same, that Manuel' Villareal, her brother, and Alejo Minjarez, brought a wounded man to her house, and that she learned his name to be Agapito Rue-da, the man that the officers afterwards came and arrested, and she noticed blood on his leg, and that the said defendant told her that he was in the holdup, and he was the one with her brother, and that he was in the holdup with Manuel, and she further testified to having turned over his hat and clothing to the officers. The objection being to said testimony that it was prejudicial to the rights of the defendant and not legal evidence against him, and was permitting the state to give hearsay evidence of the identity of the defendant. It appears from the record that the holdup took place just before noon and shortly after on the same day the above-named parties carried the defendant into the house of said witness in his crippled condition, and left him there, where he was arrested the following day by the officers. We are of the opinion that the court committed no error in admitting this testimony. That the state’s witnesses identified the defendant as being one of the parties in the holdup, and the state’s testimony tended to show that the state’s witness Bittick, in shooting at the alleged bandits, appeared to have crippled a couple of them in their legs from their movements, and the admission of the defendant to said witness of his connection and participation in the attempted holdup, made the testimony admissible beyond question in our opinion, and, in yiew of the testimony in this case, when the codefendant Carrasco was arrested in the vicinity of the home of the state’s witness where the defendant was left, and that he was shot in the leg, and the further testimony of the state’s witness, showing that there was a Dodge car in that vicinity with bullet holes through it and blood in it, and that the car that the bandits-were using was a Dodge car, and was seen to leave the place of the holdup with three or four of the participants of the attempted holdup in it, moving at a rapid rate, and also four parties about that time were seen driving fast in- a car going in the direction of where said parties were afterwards arrested, and where said car was found, dressed in a similar manner to that in which the alleged bandits were dressed, in our opinion makes said testimony clearly admissible and not hearsay.

There is objection urged in bill of exception No. 5 to the testimony of- the state’s witness Stowe ■ to the effect that he saw the codefendant Carrasco down at a certain house, No. 607%, crippled in his right leg, to the effect that the leg was shattered, and that they took him to the doctor and had his leg dressed and sent him to the hospital, and he saw the defendant the next day, and the Dodge automobile in question, in the house of Garcia, in the vicinity of where he had seen Carrasco, and to the effect that he found him with a shattered^ leg with a bullet above the knee which he had the doctor to dress and sent him to the hospital, and further testified to having taken out of the pocket of said Carrasco a .45 automatic cartridge, to all of which said testimony appellant’s counsel objected to the matters as effecting the arrest of the codefendant,Carrasco because he had been previously tried and the death penalty assessed, and which would lead the jury to believe that the defendant was connected with said Carrasco, in the commission of said alleged offense, and that same would serve to identify the defendant as acting with said Carrasco. We think the court committed no error in admitting this testimony, because the state’s testimony clearly showed that the appellant and said Carrasco were on the scene of the alleged holdup and the place of the homicide, participating jointly therein, and attempting to effect the alleged robbery, and the confession of said Carrasco, as shown by the record, was introduced in this case by the appellant’s counsel, wherein the said Carrasco admitted and confessed to being in the alleged holdup and participating therein: This being the case, there could be no possible error committed; besides we clearly think this testimony was admissible in showing circumstances connecting the defendant and each of them with the commission of the offense charged against them. In objecting to this testimony and similar testimony herein discussed, the appellant urges the objection that, if any conspiracy was ever entered into, in this case, said' matters' complained of took place subsequent to the alleged commission of the offense. In the case of Arlington v. State, 98 Tex. Cr. R. 68, 263 S. W. 593, this court held that, as a general rule, the acts and declarations of a coeonspirator, occurring subsequent to the commission of the offense, should not be received against the accused on trial, but an exception to that rule obtains where it is shown “that such cocon-spirator is found in possession of the fruits of the crime or the weapons or instruments with which it was committed,” citing Branch’s P. O. § 695. And in said case it is further stated:

“The possession of the weapons or instruments used in committing the robbery orv any of the property obtained by Whalen would tend to incriminate him, and, it appearing from the direct evidence that the appellant acted with Whalen, the circumstances mentioned are corroborative of the direct evidence pointing to the guilt of the appellant” — citing Pierson v. State, 18 Tex. App. 561; Williams v. State, 88 Tex. Cr. R. 96, 225 S. W. 177.

And further stated:

“The evidence introduced showing the association of the appellant and Whalen both before and after the offense was properly received on the issue of the appellant’s identity.”

This case, together with the citation in Branch’s P. O. § 695, wherein there are many authorities cited, conclusively holds against the contention of the appellant, wherein he objects to the finding of the cartridges in the possession, of Carrasco, and in describing the character of wounds appellant and Carrasco had received and the condition of the appellant and their clothing. What we have said in this connection applies also to bills 7, 8, 9, and 11.

In bill No. 6, complaint is made to the action of the district attorney in stating to the court, in the presence and hearing of the jury:

“If we could show these two parties were acting together, which we have, we could show the flight of either party afterwards.”

It appears from the bill that this argument took place when the state’s witness Stowe, was upon the stand testifying, to which the appellant objected on the grounds that it was inflammatory and improper, and would tend to prejudice the rights of the defendant. The confession introduced by appellant, made by his codefendant Carrasco, shows itself that the parties named by him, including himself but not appellant, left the scene of the alleged holdup in the car rapidly, and the testimony of the state’s witness shows that said car was driven away rapidly, and was shortly afterwards seen with four Mexicans in it, driving fast, which suited the description of the parties described at the scene of the alleged holdup, which we take it would show that they had taken flight from the scene of the trouble, and that appellant participated in the holdup and left with the others, under such circumstances said bill fails to show any error in our judgment from the remarks of said district attorney. These remarks were made to the court, however, in arguing the question, and not to the jury, and under such circumstances, even if the evidence did not warrant the statement, it can hardly be supposed that the jury would take arguments and statements to the court, under such circumstances, as evidence in the case.

Bill of exception No. 10 complains of the action of the court in permitting the state’s witness Quevo to testify to having seen Carrasco prior to the date of the alleged holdup have his pay check cashed by -the bank officials at the place in question, because it is contended by appellant that it is not shown that he knew anything about, or was familiar with, such facts. We fail to see' any error in this particular, and, in our view of the case, it would be wholly immaterial whether the defendant knew that the bank had been in the habit of paying checks at the place in question and in the manner stated or not, if he participated in the holdup at the time in question.

Bills 13, 14, 15, 16, and 17 complain of the admission of the confession of the appellant over his objection, and because it is contended that same was not shown 'to be voluntarily made, and because the court refused to permit the appellant to interrogate the interpreter and stenographer who were present at the time said confession was made to the district attorney, in the absence of the jury. We have carefully considered these bills, and the interpreter, Aldrete, testified that the defendant stated that he desired to make the statement, and that he properly translated same to the stenographer in the presence of the district attorney, Vowell, and that said stenographer prepared said statement, and then, before it was read to the defendant, said district attorney warned him, and it was explained to him, that he did not have to sign same, and that said statement as read to him showed that whatever he stated could be used against him upon the trial for the offense with which he stood charged, and "that, after same had been read over to him, he (defendant) had a couple of changes made and then signed same, wherein he confessed to his part of participating in the alleged holdup, but denied having a pistol, but contended that he was to cut the wires of the automobile with a knife. We fail to see any error in the admission of this testimony, and do not believe that the trial court committed any error in the particular complained of. The witness for the state, Garcia, having testified that appellant admitted being in the holdup to her, would in our opinion render the confession made by the appellant harmless, if there was any error in admitting same by the court, which we do not admit.

In this, particular it is urged that .the interpreter was not sworn. Article 810, C. O. P., does not require the interpreter to be sworn nor the confession to be sworn to. The interpreter swore that he properly interpreted and translated the statement of the appellant from Spanish into English, and we think this was sufficient. It is also contended by the appellant that the court erred in not permitting him to interrogate the state’s witnesses relative to said confession in the absence of the jury, and forced him thereby to inquire into the statement of the appellant to the effect that he served a term in the penitentiary in Santa Pé. We cannot agree with the appellant in this contention. If the court refused to allow him the privilege to interrogate said witnesses out of the hearing of the jury, it was his privilege to take his bill and not take chances on results, and of his own volition go into the matters before the jury, and prove himself that the defendant made such statements to the interpreter. ■ The confession introduced in evidence by the state did not contain any statement to that effect; neither did the bill show that said interpreter, or said stenographer, nor the district attorney, refused to inform thq appellant’s counsel as to what statements the appellant had made concerning the matters inquired about, and, when the appellant’s counsel went into this matter and developed those facts before the jury, it occurs to us that he did so at his own peril and shouhj not be allowed to complain thereafter.

It is contended in bill No. 18 that the court erred in permitting the district attorney to interrogate the witness Aldrete as to the conversation relative to defendant serving the term in the penitentiary which was brought out by the appellant’s counsel at a conversation which is shown to have taken place in jail at another and different time than the time of the confession in question. The court, in qualifying this bill, states:That appellant’s counsel had asked the witness Aldrete as to statements made by the defendant while in jail, and in another and different conversation than the one had in the district attorney’s office, and he asked the witness Aldrete this question:

“You" say that, at the time this aheged confession was made, this man did not tell you about having been in the penitentiary at Santa Eé, that he went up for three years, serving 27 months, and was deported through Laredo,' and had only been in Juarez 2 or 3 days when he was arrested? No, sir; not in that office.”

That, this matter having been introduced by the defendant, the court believed that the state was entitled to ascertain where Aldrete had obtained such information, and moreover the defendant had elicited this answer from Aldrete without objection. The said witness stated:

“No sir; he didn’t state that that afternoon; he told me that in the jail when we were there before.”

.With this qualification to the bill showing that the defendant brought out these matters himself, we fail to see any error in permitting the state to then ask the witness where and when and what was said in said conversation and concerning same. Article 811, O. G. P., states, when a part of conversation is given in evidence by one party, the whole may be inquired into by the other on the same subject.

In bill No. 19 complaint is made to the assistant district attorney in his argument to the jury in which he stated, “What does the defendant say about this?” and began to read from the confession made by the defendant. The contention of the appellant is that it was a reference to the failure upon defendant’s part to testify. The court in qualifying this bill explains that, immediately upon the asking the question as above stated, the said attorney began reading from the confession. We cannot see how this statement, as shown by this bill* could possibly refer to the failure of the defendant to testify.

Bill of exceptions 20 complains at the argument of the district attorney to the jury, in which he used the following language:

“If you didn’t want all this artillery presented here before the jury, why did you and all these other bandits carry it up there,”

■ — because it is contended that it is inflammatory and prejudicial to the rights of the defendant. There is no question from the record but what the defendant and codefend-ants had pistols on the scene of the homicide, and we are unable to see how this kind of an argument was prejudicial to the appellant. In the brief appellant contends that it-referred to the attorneys as also being a bandit. We are unable to see how the jury could have been misled by such remarks, as there is no evidence tending to show that the attorneys for appellant were connected with this matter in any particular, and, even though the statement bears that construction, it certainly could not have influenced the verdict of the jury in any way.

Appellant contends in bill 12 that the court should have peremptorily instructed a verdict of not guilty, and that the evidence is insufficient to warrant a conviction. The testimony in this case shows upon the part of the state that the appellant was present, participating in the shooting wherein there were two persons killed, and that he confessed to it to the witness Garcia, and all the facts and circumstances go to show, outside of the positive proof and his confession to witness Garcia, that he was one of the participants in the attempted robbery, and that he was found wounded immediately thereafter, in the house of the sister, of one of his alleged conspirators, outside of his own confession to the district attorney, admitting his participation in the alleged holdup, was entirely sufficient basis upon which to predicate a verdict of guilty in this case. The defendant failed to testify, and only placed two witnesses upon the stand, who testified that he was not in the bandit car at the scene of the homicide and in effect that he was not there; this of course only raised an issue for the jury to pass upon, and for them to decide whether or not they would believe this tes-timohy or that of the state to the contrary, and which the jury, we think properly, decided against the appellant. This court, in the companion case of Carrasco v. State, 274 S. W. 165, held that the evidence was sufficient.

After a careful examination of all the appellant’s bills and of the entire record, we are forced to the conclusion that the record fails to show any error in the trial of this case, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM:

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

EATTIMORE, J.

Appellant again urges error in the action of the trial court in not putting his case to trial before that of his codefendant Carrasco. It appears that he and Carrasco had entered into a written agreement, by the terms of which appellant was to be first tried. The matter seems to have been presented to the court below somewhat in the nature of a request for severance. Information had been given the trial court of the agreement, but also of the further fact that appellant had said that he did not (jare to be tried first. As we gather from the record, when the application was presented, the court asked appellant in person if ho desired that his case be tried first, and appellant expressed indifference regarding the matter, but, upon further inquiry, told the court to try Carrasco first. Our statute upon severance seems to require that an affidavit or affidavits be presented asking that some one or more of the parties jointly indicted be tried first, in order that it may be determined that such person or persons are not guilty, so that their evidence may be used by those who seek to be put upon trial at a later time.,. As we understand the case before us, the request had no such foundation, and was not preferred by Carrasco, and the complaint is not here made in Carrasco’s case. It was urged in the oral presentation of this case that the attorneys for appellant believed that Carrasco, the leading spirit in the transaction which formed the basis for this prosecution, would be convicted capitally, and that such fact would in some way affect the trial of appellant, should he be tried after Carras-co. The contention is novel, but has had our serious consideration, and we are not impressed with the view that same is sound, or that the trial court in anywise exceeded his discretion in the matter. Arguments that the action of the court showed want of consideration for counsel might be persuasive but not sufficient to justify a reversal of the ease.

It is earnestly insisted that we failed to get appellant’s viewpoint in regard to his bills 13-17, complaining of the trial court’s refusal to withdraw the jury while testimony was being heard on the issue as to the voluntary character of an alleged confession. Appellant says thát at once, upon the offer of said confession by the state, he asked that the jury be retired while he presented' to the court certain matters .intended as an attack upon the voluntary character of the confession. While primarily the trial court decides the competency of a confession, still, if its voluntary character be attacked and brought in question in the evidence, it then becomes a jury question under our practice, and the evidence supporting the contention that it is involuntary, as well as that on the other side, should be received in the jury’s presence. We fear that able counsel for appellant are mistaken in their application of Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747, or may have been misled by the syllabus in that case. Said authority, in so far as applicable here, deals only with the question of whether the accused was under arrest or not at the time he made a statement otherwise admissible. We held, under- the facts of that case, that it was error for the trial court not to withdraw the jury and allow the accused to Show by proof that in fact he was under arrest at said time. The rule in reference to cases where the issue is as to the voluntary nature of the confession is stated in the-opinion in that, case, and a distinction made between it and the rule applicable when the issue is the arrest of the maker of the statement. Judge Hawkins says, in the opinion in that ease, in discussing the practice when the contention is that the confession is not voluntary:

“If an issue of fact be raised, then to let all the evidence upon the issue go to the jury in order that they may be able to pass upon that question as well as to determine the weight to be given the admission or confession.”

We have carefully examined bill of exceptions No. 18, and, as far as we understand it, we note that appellant drew out of witness «Aldrete the fact that appellant told said witness that he had been convicted for a felony in the federal court. The matter being thus elicited by the appellant, he is in no position to complain of the fact that in the state’s cross-examination questions were asked relative to the conviction of appellant for a felony. The court’s qualification on this bill was accepted without question, and cannot be here attacked for the first time. What we have just said applies to the qualification appended to bill - No. 19, which complains that the state’s attorney in his argument said, “What does the defendant say about this?” it being here insisted that this referred to appellant’s failure to testify. Accepting as true the court’s explanation to said bill, to which no exception was addressed, it therefrom appears that said attorney had been commenting to the jury upon the statement of appellant’s codefendant Carrasco which was- in evidence, and that he then used the words above quoted and now complained of, but that, after asking the question as to what appellant says about this, said attorney then took in his hand the confession of appellant and said to the jury, “I will read you what he says about it.” This manifests no error.

We have given to each contention in this motion close scrutiny and careful consideration, in view of the extreme penalty of the law inflicted upon appellant, but find ourselves unable to agree with same. ''¡Ye feel it but fair to commend the forcible presentation as well as the careful preparation of this case before this court, which evidences that the trial court was justified in his selection and appointment of counsel to defend a man upon a serious charge such as this.

The motion for rehearing will be overruled.

MORROW, P. J.

(concurring). Appellant was charged with a capital offense. The law contemplated that he be represented by counsel, and the court, in obedience to the statute, had appointed counsel. In the opinion of the writer, the appellant was entitled to have the management of his ease left in their hands. The order of trial had, upon an agreement of severance, been fixed with the sanction of the court by an order duly entered. The appellant was an ignorant man, unacquainted with the English language. He was incapable of deciding upon matters of procedure. In acting upon his acquiescence in setting aside the order of trial and in ignoring the protest of his attorneys, in the opinion of the writer, the right of appellant to representation of counsel; which is guaranteed by the Bill of Rights and by statutory enactments, was in a degree abridged. See Roe v. State, 25 Tex. App. 66, 8 S. W. 463; Patterson v. State (Tex. Cr. App.) 60 S. W. 560; Walker v. State, 32 Tex. Cr. R. 179, 22 S. W. 685; McLean v. State, 32 Tex. Cr. R. 521, 24 S. W. 898; Huntly v. State (Tex. Cr. App.) 34 S. W. 923; Daugherty v. State, 33 Tex. Cr. R. 173, 26 S. W. 60; Kuehn v. State, 47 Tex. Cr. R. 637, 85 S. W. 793; Spangler v. State, 42 Tex. Cr. R. 235, 61 S. W. 314; Jackson v. State, 55 Tex. Cr. R. 79, 115 S. W. 262, 131 Am. St. Rep. 792. Inasmuch as no injury is pointed out, and my associates are of the opinion that the record is such as to negative any suggestion of injury, I do not dissent from the result of the appeal. I merely make these remarks so that it may be understood that the procedure adopted is not in accord with my view of the law. 
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     