
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1912.
    Rehearing Denied March 6, 1912.)
    1. CRIMINAL Law (§ 134) — Change of Venue — Application — Necessity of Affidavits.
    Under Code Cr. Proc. 1895, art. 615, which provides that an application for a change of venue must be supported by the affidavits of at' least two credible persons, the overruling of verbal and written motions i for such change, unsupported by any affidavits, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 251; Dec. Dig. § 134.]
    2. Homicide (§ 173) — Evidence—Cause of Death.
    Testimony of a physician of long standing, who examined the wounds of a deceased person on the morning he was found dead, as to what character of instrument was used to inflict the wounds, was properly admitted in a prosecution for murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    3. Homicide (§ 174) — Evidence — Escape of Accused.
    Where, in a prosecution for murder, the case depended in part on circumstantial evidence, an escape from prison after the arrest of the accused was proper to be shown.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    4. Criminal Law (§ 531) — Evidence—Confessions.
    Though a person accused of murder contended that a confession which he made was secured by coercion and coaxing and influence of intoxicating liquors, it was properly introduced where the testimony of a county attorney, sheriff, mayor of a city, and two subscribing witnesses was to the effect that it was free and voluntary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ Í212-12Í7; Dec. Dig. § 531.]
    5. Criminal Law (§ 814) — Trial—Instructions — Applicability to Evidence.
    A requested instruction on the effect of a confession of the accused was properly refused where the confession was not taken at the time and place mentioned therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1865; Dee. Dig. § 814.]
    6. Criminal Law (§ 825) — Trial—Instructions — Request for More Specific Charge.
    Where a charge on the effect of a confession sufficiently submits the issues, it is sufficient, in the absence of a request for a more specific application of the law.
    [Ed. 'Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    7. Criminal Law (§ 1064) — Appeal—Reservation of Grounds.
    A charge in a criminal prosecution will be held sufficient to present the issues, where no error therein was pointed out in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    8. Criminal Law (§ 1172) — Appeal and. Error — Prejudicial Ereor.
    Though an instruction on the subject of confessions might have been made more specific, it will not be ground for reversal, where the facts in evidence outside of the confession were sufficient to support the verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3154; Dec. Dig. § 1172.]
    9. Homicide (§ 162) — Evidence.
    In a prosecution for murder, evidence that an account book belonging to the deceased had been lost and not found would not tend to prove any issue, and was properly refused.
    [Ed. Note. — For other cases, see Homicide, Dee. Dig. § 162.]
    10. Criminal Law (§§ 419, 420) — Evidence —Hearsay.
    Evidence as to what witnesses had heard others say about the deceased having trouble with a person other than the accused was properly rejected as hearsay; evidence as to, what the witnesses knew of the matter and what they had heard deceased say being proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    11. Criminal Law (§ 452) — Opinion Evidence-Knowledge as to Subject-Matter.
    A refusal to permit a witness in a criminal cause to testify as to what would be the probable effect on a negro or person of the lower classes of threatening, coaxing, intimidating, or cursing to induce or impel the making of a confession was proper where such witness was not shown to have expert knowledge not possessed by an ordinary juryman.
    [Ed. Note'. — For other oases, see (Criminal Law, Cent. Dig. §§ 1053-1055; Dec. Dig. § 452.]
    12. Criminal Law (§ 1091) — Appeal and Error — Bill of Exceptions.
    Where a bill of exceptions on an appeal from a conviction does not show the answer of a witness to a question complained of, it cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2S18, 2819, 2823, 282S-2S33, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    13. Criminal Law (§ 351) — Evidence.
    The coming and going of an accused after the commission of an offense are proper matters to be shown, except where the state thereby seeks to prove a different offense.
    [Ed. ■ Note. — For other cases, see Criminal Law, Cení. Dig. §§ 776, 778-785; Dec. Dig. 351.]
    14. Criminal Law (§ 1037) — Appeal and Error — Reservation op Grounds — Requested Instructions.
    Where remarks of counsel on the trial of a criminal prosecution were not entirely uncalled for, and not of such a character as would arouse the passions or prejudices of the jury, they will not be considered on appeal, where no instructions were requested taking their effect from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    15. Criminal Law (§ 814) — Trial—Instructions — Necessity op Supporting Evidence.
    A requested charge on the theory that the defendant was only an accomplice, and could not be convicted as such under the indictment, was properly refused, though correctly stating the law, where no view of the evidence or the confession of the accused would make him an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1860; Dec. Dig. § 814.]
    16. Homicide (§ 30) — Parties to Offense-Accomplice.
    Where a person accused of murder confessed that he was present at the killing of the deceased, and, while he did not strike the blows which resulted in the death, he did take a watch off the deceased’s person, he was not an accomplice, but was liable as a principal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.]
    17. Affidavits (§ 5) — Authority to Take —Appeal—Attorney for Accused.
    Affidavits taken by the attorney for the accused are insufficient to present the disqualification of a juror to the court on appeal.
    [Ed. Note. — For other eases, see Affidavits, Cent. Dig. § 20; Dec. Dig. § 5.]
    18. Criminal Law (§ 1090) — Appeal—Presentation of Grounds — Necessity' of Bill of Exceptions.
    The court on appeal from a criminal prosecution will not consider matters in regard to the evidence presented in the motion for a new trial, but not supported by any bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927; Dec. Dig. § 1090.]
    19. Criminal Law (§ 1124) — appeal—Reservation of Grounds — Motion for New Trial — Supporting Evidence.
    The court on appeal from a conviction will not consider a ground in a motion for new trial alleging newly discovered evidence that is not supported by evidence or any affidavit attached to the motion.
    [Ed. Note. — For other cases, Law, Cent. ■ Dig. §§ 2947, 2948; 1124.] see Criminal Dec. Dig. §
    20. Criminal Law (§ 1124) — Appeal—Reservation of Grounds — Motion for New Trial.
    An allegation in a motion for a new trial as to a disqualification of a juror will not be considered on appeal from a conviction where neither supported by evidence nor affidavit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2946-2948; Dec. Dig. § 1124.]
    21. Criminal Law (§ 1124) — Appeal and Error — Review—Reservation of Grounds —Necessity of Bill of Exceptions.
    A mere allegation in the motion for new trial not supported by a bill in the record that the court reprimanded counsel for the accused is insufficient to preserve such matter for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2946-2948; Dec. Dig. § 1124.]
    Appeal from District Court, Jefferson County ; W. H. Pope, Judge.
    Henry Williams, alias Ed. Jones, was convicted of murder in the first degree,, and appeals.
    Affirmed.
    T. H. Bowers and David E. O’Fiel, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBBR in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury of Jefferson county, charged with murder. He was adjudged guilty of murder in the first degree, and his punishment assessed at death.

The state introduced in evidence a confession alleged to have been made by defendant. It reads as follows:

“I, Eddie Jones, being in the custody of an officer, having'been duly warned by Marvin Scurlock, county attorney of Jefferson county, Tex., to whom this statement is made, that I do not have to make any statement at ■all, and that any statement made by me may be used in evidence against me on my trial for the offense concerning which this statement is made, say:
“Well, I might as well tell the truth about the matter. It’s come to the point where I might as well tell the truth. I make this statement voluntarily; yes, sir. I already told some lies about it, but I have got to the place where I might as well tell the truth, the whole truth; yes, sir.
“Well, I got here on Saturday between 7 and 8 o’clock; and went to the reservation, to Belle Williams’ place. I had a pair of overalls wrapped around a pistol which I carried with me. When I got to Belle’s, I asked her to keep the pistol for me until I got ready to go. She taken the pistol, and gave it to Doll Baby. After leaving Belle’s house, comes on down to corner of Bowie and Park street, and, when I gets there, meets Chas. Nelson and Slippers. (No, six; I don’t know his other name.) He was called Slippers ; that’s all I know. Well, when I gets there on the corner, I meets them. They says to me: ‘Hello, Sonny Boy.’ I says, ‘Hello.’ We talks there awhile. Chas, asked me how everything is in New Orleans, wanted to know if I had heard anything about him down there, that he shot a nigger, and had to leave there. I told him X hadn’t heard anything about it. Didn’t know anything about it. Then they asks me if I wanted to get in on something around here? Asked me if I thought I could get a hold of some — something. I told them I didn’t know. I might get hold of something. Then Chas. Nelson told me they had a place somewhere around the Opera House. They was going to throw a guy. Says he: ‘Do you want to go with us?’ I said, ‘Yes,’ X would go with them. Then we talked about it. When he said they was going to throw a guy, I told them I would go with them, but didn’t want to go and hurt anybody; that I could always get mine without hurting anybody; that I never-hurt anybody; that I didn’t want to bother any one. Chas, said there would be nothing to it, so we talked there awhile, and I started to go on off. Before we finished talking, Lonny Secret came up, and we had to break up our conversation.
“Before Lonny came up, and when I was getting ready to go off, they told me that the place they was going through was in the Opera House building. Charlie said to me: ‘Well, Kiddo, you going with us, ain’t you? You will be there?’ I said: ‘All right, yes; I will be there.’ He said: ‘Well, you meet us close to the Opera House about 11. or 12 o’clock, between those hours.’ And I told him, ‘All right.’ I left him and went to Rol-an and Foley’s place, their barroom, and played some pool, about four games, but kept on losing, so I quit. About that time two officers came in and looked round the place, and asked the niggers where they was working. I came out from the barroom between Babe Hamilton’s place and the barbecue stand; meets Charlie and Slippers again. They says to me, ‘Well, Kiddo, you’re going, ain’t you?’ I says, ‘Why, sure I’m going.’ They said, ‘Be sure and be there; don’t fail us.’ I said I would be there all right. Well, we completed our plans in that way, so I left them and went back to the corner. Yes; I told them before I left that I would be with them when they went.
“Well, went down to the corner of Orleans and Bowie; down Orleans to Crockett; goes back to the peservation; comes back from there; comes to Crockett, and down Crockett to a fruit stand, then went back to the reservation; then to Belle William’s place; went in cross the gallery to the room where she told me I could sleep; lays down on the bed, and went to sleep; slept there till about 11 o’clock, between 11 and 12 at night; gets up and goes out across gallery, on the side where the room was, goes up and across by the freight shed and the depot, goes on down that street that runs by the Opera House, and meets them. (Charlie Nelson and Slippers; yes, sir.) Meets them there by the corner of the street where the Opera “House is on. Yes, sir ;■ meets Charlie Nelson and Slippers at the corner where that grocery store is. They says: ‘Well, old Kiddo, you got here.’ I says: ‘I just woke up in time. Thought of what you told me. Got up right away and come on here.’ We went across the street. They said we was going up in the Opera House. That was where we were going to get a hold of something. I said all right, so we started in. Charlie Nelson was in the lead; goes through kinder open place, the entrance to the building; and through the place where the swinging doors are, into the lobby, or some kind of place inside the swinging doors. We walks on a little piece till we comes to some steps on the right; goes up some steps to the fourth floor, I think it was, the floor where the man was killed, where he fell down and lay.
“As we are going up, the elevator comes down. I could hear it coming down. It made a noise, so we got over kinder in the corner of the stairs, and didn’t make any fuss. We didn’t know whether it was coming back. Well, the elevator' didn’t come back. Stayed there about 10 or 15 minutes, without making any fuss, to see if the elevator was coming back, but it didn’t come; so Slippers goes into a little room to the left of the elevator, and to the right of the steps, and gets a piece of pipe. The door to the little room was open, I think. Anyway he gets there and gets the pipe and comes back out, and Charlie places himself in front of the elevator door after Slippers came back with the pipe. Slippers gave Charlie the pipe and Charlie gave Slippers his pistol. It was a 38 special. As I says, Charlie stands in front of the elevator door, and Slippers stood on the other side of the elevator door, °just behind Charlie; and I stood off kinder from the elevator, stood in a sort of little hallway in front of the steps as you come up the steps. And after that we heard some one coming down the steps, and Charlie says: ‘That’s the man. That’s him. That’s the guy we are going to throw.’ Charlie says that. Slippers says, ‘Yes; that’s him.’ When the man came down the steps, I couldn’t see what he had under his arm. He had some kind of a bundle under his arm, something white, but I couldn't tell what it was. When he put his foot on the floor next to the bottom step, Charlie struck him with the -pipe, and, when he struck him, he fell; and, when he fell, Charlie struck him again with the pipe, and, after that, Slippers lit in on him, and commenced to batting him with a pistol, a 38 special, 6-inch barrel. How many times he hit him I don’t know, don’t remember; never paid muck attention, but know that be struck bim several times witb tbe pistol. After that they laid tbe pipe down and went through him, searching bim, and got a pocketbook out of his pockets. They went all through him, found what they could.
“The pocketbook I don’t know what col- or it was. It was kinder reddish, and folded up, had a place where you could put money. After Oharlie knocked him down and Slippers beat him with the pistol, Charlie went up the steps a little piece, and turned on the light. Then they went through the man, rolled him over, and went through him. I didn’t have anything to do with them at the time.. I just came up and looked on. I didn’t do anything right then. After they went through him, they takes the white something, I can’t say what it was, but he had it under his arms. They takes it and wipes off their hands first; and, after they wipes off their hands, they wipes off the pipe with the white thing, and lays it down, I don’t know where; never paid much attention where they lays it down, but after that •Charlie Nelson started up the steps. About that time I was fixing to take the watch on the man. Charlie started up the steps, and I told him, when he says something about going up, I told him: ‘No. It ain’t no time for us to go up there, because some one is liable to come up and catch us.’ I told him I didn’t feel so good about the matter anyway, and that we had better go down from there. So I takes the watch; and, while I takes the watch, I saw something laying on the floor on the side of the body near to the steps. It was laying in some blood. Some kind of glass shining in the blood; and after we all got together, and after talking, agrees we had better come down. After that, Charlie goes up the steps a piece and turns off the light which he had turned on before. After he turns off the light, we comes on down and goes on back down the steps. All three comes down the steps. As we started off down the steps, I heard a noise like some one struggling to get up, didn’t know what the noise was, sounded like some one trying to get up, and making a fuss or a struggle. "We comes on down, and goes over across the street by the grocery corner, and stood there a while, and talked over the matter. Then we goes on down to the next corner where the little street runs from the depot. On that corner there was some little 'sycamore trees on the bank. We stood there on the corner and talked awhile. I said to them: ‘Well, are you going to give me any of that money? Ain’t you going to give me some of it.’ They said to me: ‘God damn, you don’t get none of it. You don’t get none of it. You stood there, and didn’t do nothing at all. You don’t get nothing.’ That’s what he says. So we comes on down to the next corner, at the other end of the depot on that same street, comes out there to that street that comes in front of that big hotel (The Crosby; yes, sir); comes to barroom that corner, and stood there. Then I tells them that, if they ain’t going to give me any of the money, I am going to get me some. They says that they are going somewhere and wash their hands. Slippers says, T am going somewhere and wash my hands;’ and Charlie says, T am going to wash mine, too.’ Then Charlie says: ‘When I wash my hands, I’m going to Houston. Are you going?’ Slip: pers says: ‘Yes; I’m going.’ Then they goes down the street toward the packing house; and I makes out like I was going back to the reservation, like I was going to Belle’s, and, after they gets down the street around the corner where they can’t see me, I goes back and comes up the street to the little alleyway that goes back to the Broadway Hotel.
“Since that time I have seen both of them once or twice, I think — both Charlie and Slippers. I never knew how much they got off Mr. Lynch. Slippers got the pistol he had from Charlie. It belonged to Charlie. Charlie gave it to him when we was going up the steps. When Charlie hit Mr. Lynch with the pipe, he never did nothing but groan as he fell. Never said anything; just groaned. When he fell, I never paid any attention where his hat fell. It-was about 11:30 or 12 o’clock when he was hit. I never saw him before. Slippers said he knew about Mr. Lynch having money. I don’t know how he knew; think he worked in the Opera House some time or other. Anyway, Slippers had found out before we started out. Slippers had worked there in the Opera House, and knew Mr. Lyheh had money. When Mr. Lynch was struck, he had on a coat. There was a bundle under his arms. There wasn’t any blood on my hands; no, sir. I didn’t have to wash my hands, because they didn’t have any blood on them. Never got any blood on them, nor on my clothes, when I took the watch out of the man’s pocket. Slippers and Charlie both of them got blood on their hands, and on their clothes, too. I do not remember the date that this occurred, never paid any attention; don’t remember. I know it was in Beaumont, in Beaumont, Texas, just that.
“When Charlie struck Lynch, he fell kinder toward the wall on his face. Charlie turned him over. Slippers standing up there close by, and I was standing a little bit away. I hadn’t got any closer to him. When I took the watch, Slippers was standing off just a little piece, with his hands kinder shoved in his pockets. I don’t know how many times he was hit. I think that he (Mr. Lynch) was struck twice by the pipe, and he might have been struck oftener. I didn’t pay so very much attention; but know that Charlie struck him twice with the pipe, 'bhere was some blood there where Mr. Lynch fell. When the light was turned on, I saw there wasn’t so very much, but a small puddle of blood there on the floor. I never got into the blood or got any of it on my clothes or hands. I was kinder careful; didn’t want to get into any of it. Charlie and Slippers never told me how they knew Mr. Lynch had money or anything about it. They just asked me if I wanted to go with them on a little job. It was all made up when I got here. They rung me into it so they could have me mixed up in it. Slippers was a smart little nigger that time. They says they wasn’t going to hurt nobody, but said something about they was going to throw a guy. When they got up there on the landing, they said they was fixed up to clean him, to kill him; yes, sir. Mr. Lynch didn’t have any time to make any resistance. Charlie stood in front of the elevator and struck him with the pipe just as he came down to the bottom of the steps. He never had any chance to do anything.”

In addition to the confession, the state introduced evidence showing that appellant was in Beaumont the night of the homicide, stopping at the house of Belle Williams. This witness testified appellant had no money on Saturday (the homicide occurring Saturday night), but that he came back to her house between 3 and 4 o’clock Sunday morning, when he had a roll of bills,' and that he had blood on himself and the bills. The state proved that deceased, who was the steward of the Elks Club, was alive at 11 o’clock Saturday night, and was killed on the steps leading from the Elks Club to the street, and that he was killed by striking him on the head with a blunt instrument. An iron pipe with blood on it was found near deceased. He was found on the steps, or landing, about 6 o’clock next morning. Policeman Bailey testifies he saw appellant with two other negroes at the elevator leading up to the Elks Club about 11 o’clock on the night of the homicide. The state introduced witnesses to prove that deceased on Friday before the homicide on Saturday night had carried his watch to a jeweler to be repaired where the number on the watch and other identifying marks were made of record; that on Saturday evening the porter at the club called for the watch, and the porter testified he delivered the watch to deceased about 6 o’clock on the evening of the homicide. A witness testified he bought this watch from appellant a few days after the homicide, and positively identifies appellant as the man from whom he bought the watch, and the jewelers positively identify the watch as the one belonging to deceased, and which, by the state’s testimony, is shown to have been returned to deceased the evening before the homicide occurred that night.

In this connection Mr. Fletcher, mayor of Beaumont, testifies, without objection, as follows; “As to what defendant said about | the watch, he said it was an open face watch. I hadn’t shown it to him when he said that. He said it was an open face, and had flowers on the back of it. Then I turned it to him, and he handed it back to me, and said, ‘That is the watch,’ and, when he handed it back to me, he said, ‘It has a screw back,’ so I unscrewed it. And he had told me before that there was writing in it, and I looked and didn’t see any writing only what you see in here; and I asked him, ‘Is this what you call writing?’ and he said, ‘No; look down in that edge.’ And I looked down in the edge as carefully as I could, and you have got to have the light in a certain way, or you can’t see anything, and I couldn’t see anything from where I was sitting as he was between me and the window. And he said, ‘Get next to the window,’ and I did, and I saw some figuring — it wasn’t writing — it was figures in two different places, and I asked him if that is what he had reference to, and he said, ‘Yes.’ ” This is the watch shown to have belonged to deceased, and which was taken the night of the homicide, and which a witness testifies he bought from appellant shortly after the killing. The killing occurred some time between II o’clock Saturday night and 6 o’clock Sunday morning, and outside of the confession of defendant was a ease of circumstantial evidence.

While we have not recited .all the circumstances in the case, yet we think we have stated the evidence sufficiently to make the holding of the court on the matters hereinafter discussed understood.

1. In bill of exceptions No. 1 appellant complains that the court erred in overruling his verbal application for a change of venue, and in bill of exceptions No. 2 he complains of the court overruling his written application for a change of venue. The application was not supported by the affidavit of two credible persons — in fact, was sworn to by defendant alone. Article 616 of the Oode of Criminal Procedure provides that an application must be supported by at least two credible persons, and it has been held that the provisions of this statute must be complied with to entitle a defendant to a change of venue. Mitchell v. State, 43 Tex. 512; O'Neal v. State, 14 Tex. App. 582; Macklin v. State, 63 Tex. Cr. R. 197, 109 S. W. 146.

In bill No. 3 appellant complains that Dr. B. F. Calhoun, the physician who examined deceased the morning he was found dead on the stairway, was permitted to testify as to his opinion as. to the character of instrument that was used in inflicting the wounds. Dr. Calhoun was a physician of long standing, examined the wounds, and this bill presents no error.

Objection was made to the witness Smith being permitted to testify that, after the arrest of appellant, he escaped from prison. It is always permissible to show flight, especially in a case depending on circumstantial evidence in part.

In the next bill appellant complains of the action of the court in permitting the confession to be introduced in evidence alleging that the confession was made when appellant was intimidated, and was sick and suffering from fear and excitement; that defendant was under arrest at the time the confession was made, and it was taken in shorthand, and afterwards reduced to writing, was not a voluntary confession, and he had not been given the warning the law requires ; that he was coerced and coaxed into making the confession, and was under the influence of intoxicants at the time. Appellant’s testimony would support some of the objections so made, but the testimony of the county attorney, the sheriff, Mayor Pleteher, and the two subscribing witnesses would show that the confession was freely and voluntarily made, and that none of the objections made were tenable. The court retired the jury and heard evidence, and decided that the evidence was such as to render the confession admissible, but states that the defendant and the state could introduce evidence on this issue before the jury, and he would submit the question for their determination. We think the evidence of the state was such as to make the confession prima facie admissible, and the court did not err in admitting it. In his charge on this question he instructed the jury: “Upon the subject of confessions, I charge you as follows: The confession shall not be used if at the time it was made the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of the accused taken before an examining court in accordance with law, or be made in writing and signed by him, which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all; second, that any statement may be used in evidence against him on his trial for the offense concerning which the confession is therein made, or unless in connection with said confession he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed, provided that, where the defendant is unable to write his name and sign the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness. Now, I charge you that, before you can receive the statement claimed by the state to be a confession of the defendant as evidence, you must believe beyond a reasonable doubt that the requirements named above were all complied with, and, if you do not so believe, you will disregard the same, and proceed to consider the case from the standpoint of circumstantial evidence; and further, in regard to confessions, you must look to all the facts and circumstances in evidence prior to, leading up to, and at the time the confession is said to have been made to determine if it meets the requirements of the law set forth in this charge.” .

This charge is not subject to the criticism contained in bill of exceptions No. 14, and there was no error in the court refusing to give the special charge No. 2 asked by defendant, instructing the jury not to consider the confession, and the court did not err in refusing to give special charge No. 1 because it was not applicable to the evidence. The confession was not taken at the time and place named in this charge, but at a different time and place, and, if the testimony of witnesses is to be believed, he had stated the same matters before being taken to the place named.

The charge given sufficiently submits the issues involved, in the absence of a request for more specific application of the law, and especially as the motion for a new trial points out no error in the charge given.

Besides, the facts and circumstances in evidence were sufficient to support the verdict had the confession not been introduced in evidence, and the court properly instructed the jury on a case of circumstantial evidence.

The defendant desired to ask the witnesses Kiber and Hobby in regard to the loss of an account book belonging to deceased which had never been found. The fact that an account book had been lost, and had not been found, would not tend to prove any issue in the case. Had defendant stated he expected to prove that this account book had been found in the possession of a person other than defendant, it might have been admissible, but evidence merely going to show that at the time deceased was killed an account book had been lost, and never recovered, would not tend to prove any fact connected with the defense of defendant.

Exceptions were also reserved by defendant to the action of the court in refusing to permit him to prove by the witnesses Polk, Kelly, and others what they had heard about deceased having trouble with one Fred Guess. These witnesses were permitted to tell what they knew about the matter, and what they had heard deceased say, and all facts within their knowledge, but not what they had heard others say. That would have been hearsay, and was not admissible in evidence.

Neither did the court err in refusing to permit witness Landry to testify from his experience as an officer what would be the probable effect on a negro or person of the lower classes of certain persons threatening, coaxing, intimidating, or cursing him, and whether such conduct would be likely to induce or impel him to make a confession. The facts were before the jury for them to draw deductions, and Mr. Landry was not shown to have any expert knowledge not possessed by the ordinary juryman.

The state asked defendant, while on the stand, “What did you come back to Beaumont for, when you were arrested?” to which the defendant objected. The answer of the witness to this question, if any was made, is not shown by the 'bill, and it is therefore impossible for us to determine whether or not he could have suffered any injury, and the bill is therefore not such that this court will review.

Were the bill such as we could consider, the coming and going of a defendant, and his conduct in general, after the commission of an offense, is in general admissible in evidence, unless the state should thereby seek to prove another and different offense.

Several exceptions were reserved to the remarks of counsel for the state. No instructions were requested instructing the jury not to consider such remarks, and, in the absence of instructions being requested, this will not present such error as the court will consider, unless the remarks of counsel were wholly uncalled' for, and of such character as to arouse the passions and prejudices of the jury. The remarks in this case were not of such character, and were, in fact, deductions from the evidence in the case.

These are all the bills of exceptions in the record, but in the motion for a new trial appellant complains of the action of the court in failing to give special charge No. 3, in that the evidence under a given theory would make the defendant only an accomplice, and he could not be convicted as an accomplice under this indictment. Said charge correctly stated the law that defendant could not be convicted as an accomplice under this indictment, but the evidence does not raise the issue of his being an accomplice.

If the confession of defendant is true in every detail, it might be a question of whether he would be guilty of murder in the first degree, but this question is not raised by bill of exceptions, or motion for new trial, but his confession, nor any other evidence in the record, would not make him an accomplice.

Attached to the motion for a new trial are some affidavits taken by an attorney for defendant in this case. This question was fully discussed in the case of Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, and it was held that affidavits taken by an attorney in the case will not be considered by this court. But, if we were to consider them, they do not disclose such a state of affairs as would disqualify the juryman Daniels.

A number of matters presented in the motion for a new trial in regard to the evidence are not supported by any bill of exceptions in the record. Consequently we cannot consider them.

The ground in the motion alleging newly discovered evidence cannot be reviewed because it is not supported by evidence or any affidavit attached to motion for new trial.

The allegation in regard to the juryman Glenn cannot be considered, as it is not supported by evidence, nor an affidavit of any person.

Neither can we consider the ground stating that the court reprimanded counsel for appellant. If such proceedings took place, there is no bill in the record verifying that fact, and a mere allegation in the motion is not sufficient to bring this matter before us for review.

We have carefully considered all questions raised by bills of exceptions in the record, or properly raised by grounds stated in the motion for a new trial, and we are of the opinion that no error is presented which would authorize a reversal of this case; and the judgment is affirmed.  