
    HARRISON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1912.
    On Motion for Rehearing, Feb. 5, 1913.)
    1. Indictment and Information (§ 85)— Accessories — Sufficiency.
    An indictment which properly charged the principal with seduction, and that defendant was an accessory in that, knowing that said W. had committed said offense of seduction, with the purpose and in order that W. might evade a trial for said offense so committed by him, did unlawfully and willfully conceal and give aid to him, was sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 227, 229; Dec. Dig. § 85.]
    2. Criminal Law (§ 1091) — Review—Bills of Exceptions.
    The Supreme Court will not consider bills of exceptions not prepared in accordance with the rules, and which do not set out the proceedings below sufficiently to show whether there is error, nor within themselves disclose all that is necessary to manifest error.
    [Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2S18, 2819, 2823, 2S28-2833, 2843, 2931-2933, 2943; Dee. Dig. § 1091.]
    3. Criminal Law (§ 82*) — Evidence—Accessories— Seduction.
    In a prosecution of an accessory to the crime of seduction, it was proper to admit evidence of acts and statements by the principal as to bringing about the periods of the. prose-cutrix; all evidence admissible against the principal being admissible against the accessory, it being necessary to prove the guilt of the principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111; Dec. Dig. § 82.]
    4. Criminal Law (§ 82)— Seduction — Principal and Accessories — Evidence—Abortion and Suffering.
    The details of an operation of abortion and the suffering at the time and after are not admissible in evidence in a prosecution for seduction, nor for being an accessory to that crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111; Dec. Dig. § 82.]
    5. Criminal Law (§ 695) — General Objections — Evidence.
    Where the objections were general and to the whole of certain testimony, part of which was admissible, it was properly overruled.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.]
    6. Criminal Law (§ 393) — Evidence—Testimony before Grand Jury.
    Evidence given before a grand jury by one not under arrest, or who did not claim his privilege of not testifying against himself, and was not yet suspected, was admissible against him in a criminal action.
    [Ed. Note. — For other case's, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.]
    7. Criminal Law (§ 82) — Evidence—Accessories.
    Tn a prosecution of an accessory charged with giving a witness a certain amount of money to get out of the country, testimony by bankers that defendant had applied to them for that amount and procured it at the time was admissible.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 103-111; Dee. Dig. § 82.]
    8. Criminal Law (§ 863) — Instructions after Submission.
    Where the jury returned, after being charged and asked if it was necessary that the accessory know that the principal seduced.the prosecutrix, and the court told them that "the defendant must know that fact, adding that the issue was one for the determination of the jury, who might consider all the circumstances, there was no reversible error, in spite of Code Cr. Proc. 1911, art. 754, providing that such instructions shall be given only on the particular point asked; such statute not being construed to mean that the court cannot, at any other time before verdict, correctly charge the jury on any matter, though necessary or proper, or that he should make the answer as short as possible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2065-2067; Dec. Dig. § 863.]
    9. Criminal Law (§ 918) — Trial—Motion for New Trial — Accessories.
    In a prosecution of an accessory, it is too late, in the motion for new trial, to complain that the principal was not first tried, in the absence of any motion or bill of exceptions calling therefor, or any showing that the principal was under arrest or could be tried.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2163-2196, 2219-2224; Dec. Dig. § 918.]
    On Motion for Rehearing.
    10. Criminal Law (§ 75) — Who are “Accessories.”
    Under Pen. Code 1911, art. 86, defining an accessory as any one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade arrest, trial, or execution of sentence, one who, with such intent, spirits away or hires material witnesses to leave, so that they cannot be had before the grand jury or trial court, is an accessory; the test being whether what he did was by way of personal help to the principal to elude punishment, the kind of help being unimportant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 92; Dec. Dig. § 75.
    
    Eor other definitions, see Words and Phrases, yol. 1, pp. 59-62; vol. 8, p. 7560.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    J. H. Harrison was convicted of being an accessory to seduction, and be appeals.
    Affirmed.
    Smith & Palmer, of Comanche, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-
    
   PRBNDERGAST, J.

The appellant was indicted as an accessory to the crime of seduction. The indictment properly charged that Sam Wimberly on October 15, 1910, seduced Mattie Waldrip. Then the indictment properly charged appellant as an accessory in that, knowing that said Wimberly had committed said offense of seduction, with the purpose and in order that said Wimberly might evade a trial for said offense so committed by him, did unlawfully and willfully conceal and give aid to him. The jury convicted him and fixed his penalty at the lowest — two years in the penitentiary. •

The indictment follows, as literally as it can, the form prescribed by Judge White in his Annotated P. O. § 108, and is sufficient, expressly so held by repeated decisions of this court. Gann v. State, 42 Tex. Cr. R. 133, 57 S. W. 837. It is unnecessary to detail the evidence. The appellant neither testified nor offered any evidence. The testimony was amply sufficient to justify the jury to believe and find that said Wimberly was guilty of the crime of seducing said Mattie Waldrip, as charged in the indictment, which question was properly submitted by the court to the jury requiring such finding by them before they could convict appellant.

The testimony was amply sufficient to justify the jury to believe and find that, after said Wimberly had committed said crime of seduction by illicit intercourse with Mattie Waldrip, he got her in the family way, and that a short time before the grand jury convened, at which this investigation was made and indictment found, he procured an abortion to be had upon her; that, about a month after the ' abortion, the grand jury convened and began investigating all this matter, and, among others, had had as a witness Mattie Waldrip’s brother Tom before it, with whom she then lived, and for several months prior thereto had lived, together with another sister; that she had also just been summoned by the grand jury to appear before it as a witness in the same matter. Her father, T. G. Waldrip, was also a material witness in the matter, and if he had not already been, doubtless would have been, summoned before the grand jury as a witness in said investigation, as the evidence justified the jury to believe appellant knew and anticipated. Mattie Waldrip and her sister, Myrtle Waldrip, and brother, Tom, lived some 10 or 12 miles distant from where her father, T. G. Waldrip, lived. They all lived some considerable distance from the town of Comanche, county seat of Comanche county, where the grand jury was in session. Tom was before the grand jury on Wednesday, as a witness in said investigation. On Thursday his father went by for Mm, and they together went to the little town of Gustine to purchase some supplies. It seems that this town was the trading point of said Waldrips, and somewhere not far from the location of appellant, said Wimberly, and others connected with this matter; that along-about the middle of the evening, after said Waldrip had made his purchases and was at or in his buggy waiting for his son Tom to-leave Gustine and return to their homes, he was approached by appellant, who introduced himself to said Waldrip. Appellant proceeded to engage Waldrip for a while in general conversation, then brought, up to him the trouble he and his said daughter Mattie were having; and, after thus bringing up the subject, he invited and had Waldrip to get in a hack with him where they could sit down and discuss the matter. He then proceeded to tell him that he (appellant) knew of other girls who had gotten into the same kind of trouble and had left the community where it occurred, gone a considerable distance, redeemed themselves, restored their reputation, and married well and were doing well. 1-Ie then proceeded to ask said Waldrip how much it would take to move him and his daughters out of the community, telling him that his (Wald-rip’s) and his daughters’ friends had made up some money for him if he wanted to use it, and asked him how much it would take to move him. Said Waldrip replied that, if it was a free donation made by his friends, he would take whatever was made up for him, if it was sufficient for him to leave on. Appellant then told him to stay where he was till another fellow came to see him (Waldrip) and he asked him if he knew Sol Ingram. Waldrip replied that he had met him a few times, but did not know that he was personally acquainted with him. Directly Ingram came to him (Waldrip) where he then was, and Waldrip thinks appellant came with Ingram to him; but, whether he did or not, just a little later he did so. Then they all three (appellant, Ingram, and Wald-rip) talked the matter over, and Ingram told him, in the presence of appellant, that appellant had told him about the $200 and how it had been made up by his (Waldrip’s) and: his daughters’ friends. They did not tell him who had made it up, or who were their-friends, but asked him, if he was paid this-money,i if he “could go and go right now.” Waldrip replied that it would take him a little while to wind up his. business. Ingram kept on talking, and finally asked him if he “could not go right now if they would give me (him) that much, and I told him I reckoned so, and Mr. Harrison (appellant)? was there then, I know.” Ingram then asked appellant if he (appellant) could go and drive one of the conveyances to take said Wald-rip and his daughters away. After some parleying, appellant agreed to do so. There was then some discussion between the three as to where he was to go to take the train. Waldrip told them that Comanche would be the nearest point, and they gave him to understand they did not want him to go to Comanche to take the train. They then agreed that Mullen, another railroad station in another county, was the next nearest place. The understanding between the three was that appellant was to leave Comanche county that night, taking his children with him. This conference and agreement occurred about three hours before sundown. Ingram and appellant then told Waldrip to go by, get Ms children, take them over to his camp, and that they would come on that night / to his camp and take him and his children from Ms camp to Mullen. All this agreement was carried out by these persons that night. Waldrip, with his son Tom, did at once go to Tom’s place, hastily have his two daughters to pack what clothes and household goods they were to take, leaving for his camp about 8 o’clock at night; his daughter Myrtle in the buggy with him, and his daughter Mattie in the buggy with her brother Tom, going then some 10 or 12 miles at night to his camp; that he then, after reaching his camp with his children, hastily prepared what clotMng and household goods he could take in trunks and about midnight, or a little later, Ingram and appellant appeared at his camp, one with a buggy and the other with a hack. One of the teams was that of Wimberly. Said Ingram and Wald-rip, after placing the trunks of Waldrip and his daughters in their conveyances, proceeded, after midnight, with them to the said town of Mullen, traveling all that night, reaching ’ Mullen the next day. Appellant drove one of the conveyances part of the time that night with said Waldrip and his wife therein, and Ingram the other with the two daughters of Waldrip, Mattie and Myrtle. During the Mght, these persons exchanged, appellant driving the buggy with the two daughters in it part of the way, and Ingram the conveyance with Waldrip and his wife therein part of the way. Upon reaching Mullen, they took the trunks of the parties to the depot of the railroad, and the womenfolk to the hotel. They went to the wagon yard. After reaching Mullen, and before Ingram and appellant left Mullen returning to their homes, they paid Waldrip $165 of the $200 cash they were to pay him, gave each of Waldrip’s two daughters some of the money, took out $10 to pay Harrison for his time and efforts in going and driving one of the conveyances, and agreed to pay Waldrip’s son for Mm later the balance of the $200 cash. It was further shown that, after the conference and agreement between said Waldrip, appellant, and Ingram, it was after banking hours, and the banks in the town had closed; that Ingram went to one of the bankers and to some of the merchants in an attempt to raise the $200 cash, telling them that he was compelled to have $200 cash that evening. By manipulating around with two or three of them, he arranged between them to raise, and did raise and get, $200 cash that evening. The evidence further shows that appellant and Ingram, after getting said two conveyances, went at night to said Waldrip’s camp, arriving there, as stated above, about or after midnight; that said Wimberly was with them when they started to this camp for Waldrip and his daughters and that said Wimberly drove the hack from Gustine to Fleming a part of the way, and appellant and said Ingram rode in the buggy that far together. It further shows that, as agreed between them, Waldrip did not tell them when they separated the next day in Mullen where he was going to take his family. They did not know, and wanted not to know! That was a part of the plan arranged between them.

Appellant has several bills of exceptions to the admission of certain testimony. Not one of these bills is prepared in accordance with the well-established and uniformly enforced rules of this court. None of them set out the proceedings in the court below sufficiently to enable this court to know whether or not an error has been committed. Neither of them of and within themselves disclose all that is necessary to manifest the supposed error, and none of them, as stated above, comply with the rules of this court sufficiently to authorize or require it to consider them. These rules have been so frequently announced, and the cases cited establishing them, that we deem it unnecessary to again do so; but see section 557, p. 557; section 1123, p. 732, of White’s Ann. C. C. P. Yet, while these bills are in this condition, we will state some of them and the questions attempted to be raised thereby.

The substance of the first bill in full is this: After the style, number of the cause, and the court, it states that upon the trial the witness Mattie Waldrip, being on the stand testifying as a witness for the state, and having testified to having intercourse with said Wimberly, and having missed her monthly sickness, was permitted, over his objections, to further testify: “After that Sam Wimberly saw me and asked me if I had missed, and I told him that I had, and he told me that he would get me some medicine. He got the medicine and,told me how to take it, and told me whar it was intended to do. He told me the medicine was to bring my periods back. He told me how to take the medicine. I then took the medicine as he directed. It did not bring my periods back. Later on after that, Sam saw me again, and had a talk with me in reference as to whether my periods had come back on me. He asked me if my sickness had returned, and I told him, ‘No.’ On the second trip, he told me that, if the medicine did not bring them on, he would get a doctor. He told me that he would get Dr. Daniels. He then brought me some medicine the second time, but did not tell me who it was that fixed the medicine up. He told me how to take the second lot of medicine that he brought me. I took that medicine like he told me. He told me that it was to bring my periods around. Before he brought the second medicine, he had seen me and asked me if the first medicine he gave me brought me around all right. I told him it had not.” That, when this testimony was offered, he objected to it (a) because it related to acts, matters, and conversations had between the witness and a third person in his absence, there being no proof that he knew that said Wimberly had had intercourse with said witness, or that said Wimberly had obtained such intercourse by a promise of marriage, or that he agreed to any of those things, and that he could not be bound and was not responsible for any act, word, or thing so done or testified to; (b) because said testimony was highly preju-dical and inflammatory, and calculated to injure him before the jury, and would show, if believed by the jury, that said Wimberly had seduced said witness, and was then trying and attempting to produce an abortion and a miscarriage upon her, was irrelevant and immaterial. The court, in allowing the bill, did so with the explanation that appellant was being tried for the offense of an accessory to the crime of seduction, which was alleged to have been committed upon the witness by said Wimberly; that the charge of the court required the jury to believe, beyond a reasonable doubt, that said Wimberly committed the crime of seduction on her, as alleged in the indictment, before appellant could be convicted on the charge against him — the above portion of the evidence against Wimberly going to show that he had intercourse with said witness and tending, at least in part, to show he was guilty of the crime — -that, if said Wimberly had been on trial for seduction, this evidence would have been admissible against him, and, being so, was competent as going to show guilt in the trial of one whose connection with that crime was that of an accessory.

The next bill makes only the same general statement of the said witness Mattie Waldrip being on the stand for the state and testifying, quoting nearly two typewritten pages of her testimony along the same line and to the effect that said Wimberly, shortly before an abortion was produced upon her by the doctor whom Wimberly had procured and sent to her for that purpose, had ascertained from her her condition of pregnancy by him; his (Wimberly’s) furnishing her with medicine to bring on her monthly period and produce fen abortion; failing in that, that he had procured and sent to her, through said Ingram, a doctor who had performed an operation upon her and produced a miscarriage and abortion. To all of this testimony he made substantially the same objections as to that first above stated. In approving that bill, the judge did so with the explanation and qualification that it was the state’s theory that said Ingram, Wimberly, and said doctor, whose name was Daniels, had all acted together as principals in producing an abortion on said witness to suppress and destroy the fetus of the child begotten by Wim-berly’s intercourse with her in pursuance of his seduction of her, and that this abortion was to protect him from arrest and conviction for his said crime, and that such conduct on his part, and all those with whom he acted as a principal, tended at least to connect him with the seduction of said girl, and tended to show he had intercourse with her, and that there was evidence to support this theory; that this evidence would have been admissible against Wimberly if he had been on trial for seduction, and was also admissible against one who ■ subsequently became connected as an accessory with him in said crime.

Even if we could properly consider these bills, there is no question but that some, if not all, of this testimony would have been admissible against Wimberly if he had been on trial for seduction. As was properly held by the trial court, it was necessary, under the law for the state, to introduce evidence to. prove that said Wimberly was guilty of seduction, as charged; and any legitimate evidence, tending to show or establish that charge, was admissible against him. Being admissible against him, it was admissible against appellant, as he was charged as an accessory to that crime, whether appellant was present when any of the acts and dealings which occurred between the said seduced girl and Wimbérly or not.. We think, under all of the authorities, some, if not all, of this testimony would have been admissible-against Wimberly, if be had been then on trial for said charged crime of seduction.

It is our opinion, however, that, even if said Wimberly had thus been on trial, the-details of the operation to produce the abortion, and the details of her suffering then and' afterwards, would not have been admissible,, if any such testimony by itself had been singled out and properly objected to, and the proper bills saved at the time. But that was not done in this case, and the bills show no-such thing; but they show, as stated above,, that the objections were general and to the whole of the testimony, without singling out and objecting properly to that part which. was inadmissible. Tbe rule in this state is well established that, under such circumstances, the bill being as stated, no reversible error is shown. Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; 1 Thomp. on Tri. § 696.

By another bill, headed'the same as the ones above noted, it is stated that, while the state’s witness Mr. Clark was on the stand, he testified, in substance, that he was a member and secretary of the grand jury at the time they were investigating the matters in connection with said girl, Mattie Waldrip; that appellant was subpoenaed to come before it, did so in obedience to the subpoena, and testified therein; that his testimony was taken down in writing by the witness at the time, read over to appellant, and signed by him; that this written testimony of the appellant was then introduced in evidence, and it is quoted in the bill, and that it was introduced as original evidence, while the state was introducing its testimony before it rested ; that appellant objected to it on the following grounds: ('a) Because it was competent and permissible for the state to show the statement made toy the defendant before the jury. (This ground has evidently been miscopied in the record. Doubtless the objection was that the evidence was incompetent and not permissible.) (b) It was not then an issue before the court, and not made so by the defense as to the truth of the matters inquired about by the state in the introduction of said written testimony, (c) That the grand jury had no right, under the law, to so subpoena appellant and require him to come before it and require him to testify in regard to the matter in question when they were investigating an accusation against him, and that it did not appear that said statement, so made by him, was voluntary, and that it did not appear, before making it, he was warned by the grand jury that any statement he might make would be used as evidence against him and not for him. (d) That appellant not being a witness now in this trial, it was contrary to the law for the state to be permitted to show in evidence statements and declarations so made before the grand jury as a part of its original evidence. (e) That it was not competent for the grand jury to make public the proceedings of that body, and make public the testimony given before it by the accused. It will be noted that these various matters, stated as objections, were stated only and solely as objections, and not as facts, and were not approved by the court as facts. In allowing the bill, the court qualified and explained it by stating that appellant was not under arrest and before the grand jury, and had not theretofore been indicted or otherwise charged with the crime in question, or, so far as any evidence showed, had not even been sus-picioned of being connected therewith; that he voluntarily gave the evidence before the grand jury as any other witness, and at no time and in no way claimed the privilege and asked to- be excused from testifying on account of self-incrimination. In our opinion, that the statement, testimony, and admission of a party who is on trial under such circumstances is admissible against him, there can be no question. Under the circumstances stated by the qualification of the court, and the clear lack of showing otherwise by the bill, as a statement of facts in connection with the testimony of said witness Clark, and the sworn testimony of the appellant, the court was clearly correct in admitting this testimony even if, as presented, we could consider this toill and the question attempted to be raised.

By three other bills appellant attempts to object to the testimony of the bankers at Gustine showing, as to said Ingram, late in the evening, after he and Harrison had had said interview and trade with the witness Waldrip, as shown above, the efforts and statements he made to raise the $200 which they were to pay Waldrip, and the fact that he did raise and procure at the time, from different persons, $200. Various objections are made to this testimony, but principally because appellant is not shown to have been present, and his connection therewith is not shown, etc. The court, in allowing these bills, explained and qualified them by showing that said Ingram, Wimberly, and appellant were shown, at least substantially, if not by positive testimony, to have acted together in the matter of paying the $200 obtained by Ingram at said time to pay said Waldrip, who was a witness against Wimberly in the seduction charge, and to secure his flight from the country and induce him to take with him his said daughter Mattie; that appellant’s connection with the money transaction was substantially shown, and, as it would be admissible against Wimberly, was also competent against appellant; and, further, that appellant’s testimony before the grand jury showed that he, Ingram, and Wimberly acted together in the.matter of paying the money secured to Waidrip to secure his and his daughter’s flight from the country. Appellant actually assisted in carrying them away. He also states as a fact that both Ingram and Wimberly fled the country after the above facts transpired, and had not, up to the time of this trial, been arrested on the indictments against them for their connection with the crimes of seduction, abortion, bribery, etc., against them. Whether all of the details of the testimony of these respective witnesses should have been admitted or not, we are not called upon to say. Clearly, in our opinion, the main features of their testimony, to the effect that he applied to them to procure this $200, and did procure it from them, was admissible. Neither ’ of these bills, even if considered, show any reversible error.

By another bill, which is quite lengthy, as qualified and shown by it and the court, it appears that the jury after being charged and considering the case for some time, returned into open court in a body. The appellant was present, though his attorneys seem not to have been. The jury propounded to the court in writing this question: “Was it absolutely necessary for Henry Harrison (the defendant) to know that Mattie Waldrip was seduced by Wimberly?” The court, in answer thereto, at that time gave them this written charge: “In answer to the question propounded to me in open court in the following language, ‘Was it absolutely necessary for Henry Harrison (the defendant) to know that Mattie Waldrip was seduced by Sam Wimberly?’ I refer you to my main charge for a full statement of the law on that subject, in connection with the law on other branches of the case. In order for the defendant to be guilty of being an accessory, he must have known that the crime of seduction, of Mattie Waldrip had been committed by Sam Wimberly. This issue is one for the determination of the jury; and, in passing upon and determining said question, you are entitled to consider all the facts and •circumstances in evidence before you, and it is for you to say, from all such facts and circumstances in evidence before you, whether he had such knowledge.” The bill is too lengthy to copy in full, and it is unnecessary to further state the matter therefrom.

Article 754, C. O. P., is as follows: “The jury, after having retired, may ask further instruction of the judge touching any matter of law. Eor this purpose, the jury shall appear before the judge, in open court, in a body, and through their foreman shall state to the court, either verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given, except upon the particular point on which it is asked.” Some of the earlier decisions of this and our Supreme Court, when it had criminal jurisdiction, held that, under the statute as it then and aforetime was, the judge was inhibited from in any event further charging the jury, after he had delivered to them and they had retired with his main charge. This rule, however, was changed on the adoption of the Revised Statutes of 1S79, and this court has uniformly held that the judge may now, of his own motion, recall the jury and give them further instructions, whenever he considers it necessary to do so; of course, the defendant being present. Benavides v. State, 31 Tex. Cr. R. 173, 20 S. W. 369, 37 Am. St. Rep. 799, and authorities therein cited. In addition to this, the statute above quoted makes it his duty to instruct the jury on the particular question they ask; and while the statute says that no instruction shall be given, except upon the particular point upon which it is asked, it does not mean, and has not been construed by this court to mean, that, because thereof, the court cannot at that or any other time before the verdict correctly charge the jury on any matter thought necessary or proper by him. Neither does this statute mean that the court must give the shortest possible answer to such a question, as he might have done in this case by the one word “No” or the one word “Yes”; but it would be proper, as was done in this case, to briefly and succinctly tell the jury correctly what to do in consideration of the question propounded by the jury and answered by the court. We think the court did not commit any reversible error in giving the special charge above quoted, under the circumstances as shown in this case, and as explained by him in allowing the bill.

In appellant’s motion for new trial, some isolated paragraphs of the court’s charge are objected to and criticised. Appellant asked no special charge in the case. We have considered these matters. The court, in the charge as a whole, fairly and fully submitted the questions at issue to the jury for their proper finding; and, taken as a whole, appellant’s objections to said paragraphs do not present any material error. The court, after submitting the question to the jury and requiring them to affirmatively believe all the facts necessary, beyond a reasonable doubt, before they could convict, gave a separate and distinct charge to the effect that if they had a reasonable doubt as to whether said Wimberly was guilty of the crime of seduction, as alleged in the indictment, within the meaning of the law on that subject, as given them above in the charge, or if they should have a reasonable doubt that the defendant, knowing that said Wimberly had committed said crime, concealed him or gave him any other aid in order that he might evade a trial for said offense, to acquit appellant.

The judge, in explaining and qualifying one of appellant’s bills, states that it is a fact that said Wimberly is a fugitive from justice, and has not been arrested under the indictments found and pending against him for seduction, etc. Appellant made no motion to require the state to first try said Wimberly, and in no way set up that Wimberly had been arrested or could be tried. In the absence of any motion or bill of exceptions calling upon the court to try Wimberly before appellant, and in the absence of any showing that said Wimberly had been arrested, or could be tried, it comes too late, in the motion for new trial, to complain that Wimberly was not first tried, and that appellant should not have been tried until Wimberly was tried. The evidence was suf-fieient, in our opinion, to justify the verdict of the jury.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant presents but one question in his motion for rehearing. He contends that under certain decisions of this court and others, cited by him in his brief, the evidence does not show or justify the jury to have found that he was an accessory under our law. His contention is tersely and accurately stated as follows: “Appellant’s contention is that he could not 'be guilty in this case on the facts as an accessory to the crime of seduction as charged against him, because the character of aid rendered by him, as disclosed by the facts, was not that direct and personal aid rendered the principal, Sam Wim-berly, contemplated by our statute, and as construed by the decisions of this court and of the courts of other states with similar statutes.” He cites and relies upon Caylor v. State, 44 Tex. Cr. R. 124, 68 S. W. 982; Schackey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877; Chenault v. State, 46 Tex. Cr. R. 354, 81 S. W. 971; Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Chitister v. State, 33 Tex. Cr. R. 635, 28 S. W. 683; Gann v. State, 42 Tex. Cr. R. 133, 57 S. W. 837; Miller v. State, 72 S. W. 996; Dent v. State, 43 Tex. Cr. R. 126, 65 S. W. 627; and some New York and Georgia cases cited in 1 A. & E. Ency. of Daw, notes 2 and 3, p. 267, and 12 Cyc. p. 192, § 3, and cases therein cited.

If this court was bound by some of the general statements in some or all of these opinions of the character of aid that it takes to constitute one an accessory’after the fact, they would be in point and strongly support appellant’s contention. But, when each case is carefully considered, it will be noticed that the general statement of what it takes to constitute an accessory is not in point, for all such general statements and quotations of the common-law text-books of what it takes to constitute an accessory were uncalled for, and in most, if not all, instances obiter dictum. - Take as an illustration the case of Caylor v. State, supra. The court held specifically in that case that the evidence was insufficient to sustain the conviction,'and that was what was held, and upon which the case was reversed. Again, take as an illustration the case of Hargrove v. State, supra. A careful examination of the case will show that what the court held in that case was “that the fact that he (the witness Williams) denied to Mr. Elkins (the county attorney), soon after the killing, any knowledge of the matter, and stated that appellant was at home (if appellant is guilty), is not such conduct as would render him an accessory”; citing and quoting from several of the cases, supra, cited and relied upon by appellant. It is true that the opinion of Judge Harper in the Hargrove Case proceeds to quote, from other cases, the saia same general statements of what character of aid rendered to the principal was necessary to constitute one an accessory. Our statute, defining an accessory after the fact, is as follows: “An accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid, in order that he may evade an arrest, or trial, or the execution of his sentence.” P. 0. art. 86.

The case of Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, correctly construes our statute above, quoting it. The % opinion in that case was prepared by Presiding Judge White, when he and Judges Hurt and Willson constituted this court. The opinion shows that the question was carefully considered and the decision deliberately announced. ’ That case has never been overruled by this court. It seems that no judge, from that day to this, who has ever been upon this court, entertained the opinion that said decision is incorrect, unless it be Judge Henderson, as indicated by him in his dissenting opinion in the Caylor Case, supra. This question was thoroughly considered and discussed by this court in consultation when the Hargrove Cáse, supra, was decided. The opinion in that case, as prepared by Judge Harper, at first stated that the Blakely Case on this point had been overruled; but in consultation, all the judges being present and concurring, it was the opinion of the court that said Blakely Case had not been overruled, but that it announced the correct doctrine and correctly construed our statute on this question; and that portion of Judge Harper’s opinion, as first prepared, indicating otherwise, was deliberately stricken out before handing it down.

In order to show what was specifically decided by this court in the Blakely Case, supra, we here liberally quote therefrom: “In brief, the facts proven were that, immediately after the homicide, this defendant and May went off to themselves and had a private conversation, after which May mounted a horse and rode off. Defendant Blakely then told the only other two parties, who were present, that they must swear before the coroner’s jury to a certain state of facts which he then and there detailed, and that, if they did so, it would appear to said jury, and they would so find, that May was justifiable in self-defense in killing Daffin, and he would either be exonerated entirely or put upon a very light bond to answer the charge. Acting upon these suggestions, and through fear of May and defendant, the two witnesses did, at the coroner’s inquest, swear, as did also Blakely, to the fabricated statement of the occurrence as devised by Blakely, and the result, as anticipated by Blakely, was that May was subsequently placed under a nominal bond, and that the grand jury, for several- terms of the district court thereafter, failed to indict him for the murder, and he was only indicted after it leaked out and was ascertained that the testimony given by the witnesses at the inquest was false and perjured. On May’s trial, under indictment for the murder, the two witnesses, who had sworn on the inquest to the fabricated statement of Blakely, testified that they had sworn falsely, and developed the reasons and inducements causing them to do so. They also stated, as they declared truthfully, the facts attendant upon the homicide as they actually did occur, and upon this their testimony, corroborated as it was by other evidence, May was convicted of murder of the first degree, and his punishment was afBxed by the verdict and judgment of the court at a term of 75 years in the penitentiary, which judgment on appeal wás afterwards affirmed by this court. [May v. State] 23 Tex. App. 146 [4 S. W. 591]. It is perhaps necessary that we should further state that, after the conversation between May and defendant immediately following upon the killing, and after he had mounted a horse and ridden off, as above stated, May did not appear at the coroner’s inquest, nor was he seen for a day or so thereafter, until his appearance before the justice of the peace to enter into the nominal bond for his appearance above mentioned. On this appellant Blakely’s trial as accessory, the two witnesses also testified, as in May’s Case, to-the facts with regard to the fabricated testimony at the inquest, and to the facts as they really occurred. The objections presented to this testimony are thus stated in the able brief of counsel for appellant, viz.: ‘We submit that, under our statute, the “aid” given to an offender, which the law denounces, is something which relates to the personal conduct of the offeñder after the offense, or an aid which obstructs the operation of the law in its executive branch, such as concealing the person of the offender, or advising him how to escape pursuit, furnishing him means to make his flight, putting persons in pursuit off the track, and not an aid which causes justice to slumber, or perverts its course, such as compounding with a felon, concealing the transaction either by silence or.by perverting the facts, so as to make that appear innocent which in truth is not.’ Mr. Bishop says: ‘The true test whether one is an accessory after the , fact is whether what he did was by way of personal help to his principal to elude punishment; the kind of help being unimportant.’ 1 Bish. Crim. Law (7th Ed.) § 695. Mr. Wharton says: ‘Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, and punishment, is sufficient, it is held, to make a man an accessory after the fact.’ 1 Whart. Crim. Law (8th Ed.) § 241. We are of opinion the facts we have stated, and upon which this case rests, bring it within the purview of the general law and our statute, supra, as to accessories. Appellant, if he did not in fact conceal May until the perjured testimony was given which justified him before the inquest, certainly aided him to the extent that he was not arrested and punished for his crime until the perjury was discovered; and, but for the discovery, the aid which defendant attempted to give him would have proven effectual in affording him perfect and complete immunity from apprehension, trial, and punishment for the murder he had committed. It is true that, under the facts disclosed, defendant might have been prosecuted and convicted under our statute for subornation of perjury (Penal Code [1879] art. 199), but this fact did not destroy nor affect his relation to the murder as an accessory; it was simply a question with the prosecution as to which of the offenses he should 'be tried for. We have discussed this branch of the case thus lengthily because of the fact that our statute as to accessories has never before been directly construed.”

It will be noted that the court stated: “We have discussed this branch of the case thus lengthily because of the fact that our statute as to accessories has never before been directly construed.”

Now in the light of our statute, quoted above, and of the first decision of this court construing it on this point, let us see what character of aid appellant rendered to his principal, Wimberly, in this case. We do not propose to go into any lengthy statement of the evidence. It was sufficiently stated in the original opinion. We will merely briefly restate the salient points.

The evidence was sufficient to show that Wimberly had seduced' the girl as charged in the indictment, and that appellant had full knowledge thereof, as was required to be found by the charge of the court and was found by the jury in this ease. It was further clearly shown that the grand jury of Comanche county, where the- offense is charged to have been committed, was in session, having just been convened, organized, etc., and they were then specifically investigating, among others, the said charge of seduction against Wimberly; that, on Wednesday before this offense is alleged to have been committed on Thursday, they had Tom Waldrip, the brother of the seduced girl, who was a material witness, before them; that, in further investigation of the case, the grand jury had had a subpoena issued and served upon the seduced girl, Mattie Wald-rip, summoning her to appear before the grand jury as a witness in the same matter; and doubtless the grand jury, in further investigation of it, would have had her father, T. G. Waldrip, also before them as a material witness in the investigation. The evidence was sufficient to show that appellant and said Wimberly knew, or had notice, of all this. Tom Waldrip and his father were in the little town of Gustine, their trading point, on this Thursday evening, when appellant first approached T. G. Waldrip and proposed to hire him, not only to get away from Comanche county himself, but go at once and take his daughter, said Mattie Waldrip, with him, and that he did then hire T. G. Waldrip to carry out this plan, and paid, or had paid, nearly $200 in cash to so have them to leave, for no other purpose than to aid said Wimberly, and to keep said witnesses from appearing before the grand jury against Wimberly and to prevent an indictment, his arrest and a trial for the commission of said crime of seduction. Appellant, and those then acting with him, entered into the particulars with Waldrip of how and when he (appellant) and those associated with him were to spirit away these witnesses that night, and have them to go “right now.” Waldrip, the father, and his son, Tom, were to go to where the girl Mattie Waldrip and her sister were, some several miles from Gustine, take them, in the dead hours of the night, from where they were then living, some 10 or 12 miles to his camp, and then, in the dead hours of the night, he (the father) and the girls were to be taken away by appellant from Comanche county and secreted where they could not be found, or run out of the state, to thereby directly aid said Wimberly in preventing his indictment, and trial, and arrest. Wimberly furnished one of the teams, if he did not also furnish one of the vehicles, in which appellant and the other parties interested with him were to take these witnesses away from Comanche county and out of the jurisdiction of the Cbmanche county court. Wimberly went with them part of the way that night, driving one of the teams, when they were going after these witnesses. Wimberly was a party to the whole thing and did actually participate therein, and had appellant and the other party with him to take these witnesses away. Thereby appellant rendered him the aid contemplated by our statute. No greater, or more direct, personal aid could have been rendered to Wimberly by which he was to evade a trial and an arrest under an indictment charging him with the seduction of this girl. Spiriting the necessary and important witnesses out of the jurisdiction of the court, and out of the state, as the indications were that these witnesses were to leave the state, is incomparably greater aid rendered directly and personally to the appellant than that of merely furnishing him with a horse or vehicle or money to himself get away. Even if he could have or should have gotten outl of the state, if an indictment had been found against him, he could have been arrested anywhere in the United States, and perhaps other nations, extradited, and brought back to Comanche county for trial; but, if appellant had spirited the witnesses out of the state, there is no way known under our law whereby such witnesses could legally have been returned to the jurisdiction of the court in Comanche county, or their evidence had, to find an indictment, and Wimberly be arrested and tried.

So that we hold that, under our statute, any one who, knowing that an offense has been committed, in order to prevent the offender from being indicted and arrested, or tried, spirits away or hires the material witnesses to leave so that they cannot be had before the grand jury or trial court, this is such aid, personally and directly, to the offender as would make such person an accessory; all the other requisites being shown.

We further hold that the construction of our accessory statute in the Blakely Case is a correct construction thereof, and that all of the other general statements in the decisions of this court, indicating otherwise are hereby expressly disapproved.

The motion is overruled.  