Winkler, J.
The appellant seeks a reversal of the judgment rendered against him in the district court on the following grounds, to wit:
1st. The court erred in its ruling upon the evidence.
2d. The court erred in allowing the witness Doc Saun-ders to testify, over objections raised by the defendant, Drown.
3d. The court erred in its charge to the jury.
4th. The court erred in overruling defendant’s (Brown’s) motion for a new trial.
5th. The court erred in overruling the motion in arrest of judgment.
Treating these several alleged errors in their order, it is a sufficient response to the 1st of them to say that we find no bill of exceptions to any ruling of the court except the one mentioned in the 2d error; and, without this, the established rule is not to revise, on appeal, the action of the court below as to its rulings in either admitting or excluding evidence.
As to the 2d error assigned, the defendant having [122]*122taken a bill of exceptions to the ruling of the court in admitting the witness Doc Saunders to testify, over the objections of the defendant at the time, it becomes necessary that the-question be considered.
It is shown by the bill of exceptions that this witness, oil-being examined, said he was only seven years of age, and stated in effect that, if he should swear falsely, the bad man, by which he meant the devil, would get him, and that he would be sent to Huntsville, and that when he spoke off Huntsville he meant the penitentiary.
The law as to the admissibility of evidence of children is correctly stated in Greenleaf on Evidence (vol. 1, sec. 367), as follows: “But, with respect to children, there is no-precise age within which they are absolutely excluded on the-presumption that they have not sufficient understanding. At the age of fourteen every person is presumed to have common discretion and understanding, until the contrary appears; but under that age it is not so presumed, and, therefore, inquiry is made as to the degree of understanding which the child offered as a witness may possess ; and, if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect off an oath, he is admitted to testify, whatever his age may be.”
The practice is for the court to examine the youthful witness as to his natural intelligence and the extent to which he has been instructed or educated, and, according to the developments made on this examination, to admit or exclude the evidence. See notes to the section of Greenleaf above referred to.
Our attention has been called to but one case in our own supreme court reports—the case of Davidson v. The State, 39 Texas, 129—where it was said in effect that the admission of a child’s evidence is properly in the sound discretion of the court; and the case was affirmed on the ground, solar as this question affected the decision, that the judge [123]*123before whom, the case was tried believed the witness-competent.
We believe that the court before whom the examination-of a child offered as a witness is made is better able to-determine as to its competency to testify than this court could possibly be from the bare transcript; and we would not feel warranted in reversing a conviction had on account of . the admission of such testimony, unless it was made clearly to appear that the discretion of the court had been abused.
In this case it has not been shown that the discretion given by the law has been abused by the admission of the testimony of the witness Doc Saunders. When the evidence of this witness is considered in connection with the-charge of the court, it is not perceived that any injury could have resulted therefrom to the accused.
This brings us to a consideration of the 3d assignment of errors, to wit: “ That the court erred in its charge to the jury.” In order to a clear understanding of that portion of the charge which relates to the testimony of the witness Doc Saunders, it is proper to notice that, on his examination as a witness, he states in substance that he heard two of the alleged conspirators, Bob White and Helm, say they intended to break into the store-house of the persons named in the indictment as the owners, and that they wanted witness to-go with them ; that he agreed to do so. He says, “I told them I would. They said they wanted to take out the glass over the door [meaning the transom-lights], and put me through to get grub for them. I agreed to do it. Me and Bob White and Helm, * * * late in the night, after midnight, went up to the store and found Sam Mason and Peter Brown there and he goes on to speak of how the parties disposed themselves, some to work in removing the glass, and the others to watch, and mentions that he “sat down in the door of Lake’s drug store, which adjoins, and faces with, the store ” intended to be entered.
[124]*124Fraley, a city policeman, speaking of the affair, says : “I caught, while he was squatting down in the door-space of the drug store of Lake, the boy, Doc Saunders.” This appears to have been done after the others had taken an alarm and fled. Fraley also saw and recognized one of the parties, the man Mason, and saw two men, at the place designated by the boy, working at the transom, and one standing at the place named by the boy as the point where Brown stood, though he only recognized Mason. Other testimony corroborated the statements of the boy, Saunders.
The court charged the jury, among other things, as follows—evidently on the idea that Saunders was an accomplice : “ You are further instructed that you cannot convict upon the testimony of the witness Doc Saunders, unless he is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” And the jury were elsewhere instructed: “ You may consider the age, intelligence, interest in the case, or apparent prejudice, if any, and all other circumstances in evidence before you, in determining the credibility of the witness.” From all these instructions it is not seen how any injury could have resulted from the admission of the testimony of the boy, Doc Saunders
In all other respects the charge, taken as a whole, seems to be a full and clear statement of the law applicable to the facts of the case as made by the evidence, and as favorably as the defendant was entitled to have it. A proper charge was given as to reasonable doubt and the legal presumption of innocence, and on the subject of an alibi the court charged as asked by the defendant’s counsel, and very favorably for the accused. We find no error in the charge of the court of which the accused can complain.
The 4th error assigned is to the overruling of the defend.ant’s motion for a new trial.
There are two motions for new trial set out in the tran[125]*125script. The grounds relate to the charge, and to the law and evidence of the case, and the sufficiency of the evidence to support a conviction. One portion of the charge, not before noticed, is specially objected to in the motion for a new trial, namely, that the court erred “ in that part of the general charge of the court which instructs the jury as to their discretionary power to receive or reject the evidence of any or all of the witnesses.”
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Winkler, J.
The appellant seeks a reversal of the judgment rendered against him in the district court on the following grounds, to wit:
1st. The court erred in its ruling upon the evidence.
2d. The court erred in allowing the witness Doc Saun-ders to testify, over objections raised by the defendant, Drown.
3d. The court erred in its charge to the jury.
4th. The court erred in overruling defendant’s (Brown’s) motion for a new trial.
5th. The court erred in overruling the motion in arrest of judgment.
Treating these several alleged errors in their order, it is a sufficient response to the 1st of them to say that we find no bill of exceptions to any ruling of the court except the one mentioned in the 2d error; and, without this, the established rule is not to revise, on appeal, the action of the court below as to its rulings in either admitting or excluding evidence.
As to the 2d error assigned, the defendant having [122]*122taken a bill of exceptions to the ruling of the court in admitting the witness Doc Saunders to testify, over the objections of the defendant at the time, it becomes necessary that the-question be considered.
It is shown by the bill of exceptions that this witness, oil-being examined, said he was only seven years of age, and stated in effect that, if he should swear falsely, the bad man, by which he meant the devil, would get him, and that he would be sent to Huntsville, and that when he spoke off Huntsville he meant the penitentiary.
The law as to the admissibility of evidence of children is correctly stated in Greenleaf on Evidence (vol. 1, sec. 367), as follows: “But, with respect to children, there is no-precise age within which they are absolutely excluded on the-presumption that they have not sufficient understanding. At the age of fourteen every person is presumed to have common discretion and understanding, until the contrary appears; but under that age it is not so presumed, and, therefore, inquiry is made as to the degree of understanding which the child offered as a witness may possess ; and, if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect off an oath, he is admitted to testify, whatever his age may be.”
The practice is for the court to examine the youthful witness as to his natural intelligence and the extent to which he has been instructed or educated, and, according to the developments made on this examination, to admit or exclude the evidence. See notes to the section of Greenleaf above referred to.
Our attention has been called to but one case in our own supreme court reports—the case of Davidson v. The State, 39 Texas, 129—where it was said in effect that the admission of a child’s evidence is properly in the sound discretion of the court; and the case was affirmed on the ground, solar as this question affected the decision, that the judge [123]*123before whom, the case was tried believed the witness-competent.
We believe that the court before whom the examination-of a child offered as a witness is made is better able to-determine as to its competency to testify than this court could possibly be from the bare transcript; and we would not feel warranted in reversing a conviction had on account of . the admission of such testimony, unless it was made clearly to appear that the discretion of the court had been abused.
In this case it has not been shown that the discretion given by the law has been abused by the admission of the testimony of the witness Doc Saunders. When the evidence of this witness is considered in connection with the-charge of the court, it is not perceived that any injury could have resulted therefrom to the accused.
This brings us to a consideration of the 3d assignment of errors, to wit: “ That the court erred in its charge to the jury.” In order to a clear understanding of that portion of the charge which relates to the testimony of the witness Doc Saunders, it is proper to notice that, on his examination as a witness, he states in substance that he heard two of the alleged conspirators, Bob White and Helm, say they intended to break into the store-house of the persons named in the indictment as the owners, and that they wanted witness to-go with them ; that he agreed to do so. He says, “I told them I would. They said they wanted to take out the glass over the door [meaning the transom-lights], and put me through to get grub for them. I agreed to do it. Me and Bob White and Helm, * * * late in the night, after midnight, went up to the store and found Sam Mason and Peter Brown there and he goes on to speak of how the parties disposed themselves, some to work in removing the glass, and the others to watch, and mentions that he “sat down in the door of Lake’s drug store, which adjoins, and faces with, the store ” intended to be entered.
[124]*124Fraley, a city policeman, speaking of the affair, says : “I caught, while he was squatting down in the door-space of the drug store of Lake, the boy, Doc Saunders.” This appears to have been done after the others had taken an alarm and fled. Fraley also saw and recognized one of the parties, the man Mason, and saw two men, at the place designated by the boy, working at the transom, and one standing at the place named by the boy as the point where Brown stood, though he only recognized Mason. Other testimony corroborated the statements of the boy, Saunders.
The court charged the jury, among other things, as follows—evidently on the idea that Saunders was an accomplice : “ You are further instructed that you cannot convict upon the testimony of the witness Doc Saunders, unless he is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” And the jury were elsewhere instructed: “ You may consider the age, intelligence, interest in the case, or apparent prejudice, if any, and all other circumstances in evidence before you, in determining the credibility of the witness.” From all these instructions it is not seen how any injury could have resulted from the admission of the testimony of the boy, Doc Saunders
In all other respects the charge, taken as a whole, seems to be a full and clear statement of the law applicable to the facts of the case as made by the evidence, and as favorably as the defendant was entitled to have it. A proper charge was given as to reasonable doubt and the legal presumption of innocence, and on the subject of an alibi the court charged as asked by the defendant’s counsel, and very favorably for the accused. We find no error in the charge of the court of which the accused can complain.
The 4th error assigned is to the overruling of the defend.ant’s motion for a new trial.
There are two motions for new trial set out in the tran[125]*125script. The grounds relate to the charge, and to the law and evidence of the case, and the sufficiency of the evidence to support a conviction. One portion of the charge, not before noticed, is specially objected to in the motion for a new trial, namely, that the court erred “ in that part of the general charge of the court which instructs the jury as to their discretionary power to receive or reject the evidence of any or all of the witnesses.”
Agreeable to our understanding of the record, it does not fully sustain the objection taken to it. The charge is as follows : “It will be the duty of the jury to so reconcile any conflict you may find in the testimony as to give credit to the whole of the testimony, if you can ; but, if you should be unable to do so, then you will credit the whole or any part, or discredit the whole or any part, of the testimony of any witness who has testified in the case, according as said testimony itself, or the manner of the witness in detailing the same, may impress your minds as being worthy or unworthy of belief; and you may consider the age, intelligence, interest in the case, or apparent prejudice, if any, and all other circumstances in evidence before you, in determining the credibility of the witnesses.”
This charge was evidently intended to give the jury some guide which would enable them to determine who was most O entitled to be believed, in the event they should find such conflict in the statements of different witnesses as that it was not possible for them to reconcile all the statements of all the witnesses, with the idea that they had all spoken truthfully—not as a direction as to who or what set of witnesses should be believed to the exclusion of others, but leaving it still to the jury to determine the credibility of the witnesses, and to give them some information as to what they might legally take into consideration in determining the matter, should the contemplated emergency arise in their minds in deciding upon the evidence. It does not express [126]*126any opinion as to the weight of evidence, but leaves it to the jury exclusively to judge of the facts, as required by the Code of Criminal Procedure, Article 593. Pasc. Dig., Art. 3058.
In Rideus v. The State, 41 Texas, 199, the court found no error in a charge similar to the one under consideration. The case of Rideus is quite different from Bishop v. The State, 43 Texas, 390; there the charge attempted to draw a distinction between civil and criminal causes, and was in this and other respects criticised by the supreme court. But the charge as set out differed from the charge in the present case, and that in Rideus’ case, as must be apparent on examination of the several cases. We do not question the correctness of the rulings of the supreme court in either Rideus’ or Bishop’s case.
As to the other grounds set out in the motion, we think there is evidence sufficient to support the verdict. There is some conflict in the evidence, but with this it was the business of the jury to deal. We would not feel warranted to disturb the verdict on this ground.
There remains to be considered the 5th assignment of errors, which involves the overruling of the motion in arrest of judgment. The only ground set out in the motion is that the indictment charges no offense against the laws of this state. The offense of which the accused was charged is clearly defined and set out in the amendment to title 21, chapter 1, of the Penal Code, passed October 26, 1871. Pasc. Dig., Art. 6575 et seq. The indictment is sufficient to charge a conspiracy to commit the ‘ crime of burglary as defined in the Code. The punishment for this offense is prescribed in the act (Pasc. Dig., Art. 6581), and the lowest penalty, the minimum, fixed by law for the offense, has been imposed on the accused by the jury—viz., two years’ confinement in the penitentiary.
Bearing in mind .the difference between charging an exe[127]*127cuted and an unexecuted conspiracy, as recognized by the writers on criminal jurisprudence, and the fact that the same particularity is not expedient or requisite in setting out the facts constituting an unexecuted conspiracy as when the act has been consummated, we are of opinion that the indictment in this case sets out a conspiracy to commit burglary, with all the particularity required by the Code. Whart. Cr. Law, sec. 2337.
The conspirators are charged with an agreement to break, In the night-time, into a certain described store-house, with a fraudulent intent to take, steal, and carry away from the possession of the owners, without their consent, goods and groceries to the value of $100, and to appropriate the same to the conspirators’ own use, and to deprive the owners of the value thereof. And, agreeably to the evidence, they were surprised in the attempt to carry out the object of the conspiracy.
The judgment is affirmed.
Affirmed.