White, J.
The appellants in this case were jointly indicted, as principals, in the District Court of Montague County, for the murder of one Doc McClain, which murder was alleged to have been committed by them on the first [309]*309day of May, 1876. George Brown, Sr., and Jessie Brown were also indicted with appellants, but they were charged with being accomplices to the murder, who were not present when it was committed, but who, prior to its commission, advised, commanded, and encouraged the others in its commission, and prepared arms and aid for the purpose of assisting the principals in the execution of the deed. Pase. Dig., art. 1814.
A motion was made to quash the indictment, which was overruled by the court, as we think, correctly, none of the objections urged in the motion being- well taken. On the . eleventh day of June, 1877, all the defendants united in an application for a change of venue, setting forth the usual statutory, and certain other special grounds, and their motion was accompanied by the supporting affidavits of eleven resident citizens of Montague County. This motion was granted, and the court ordered the venue changed and the cause transferred to the District Court of Denton County. At the February term of the District Court of Denton County, 1878, the appellants, George Brown, Jr., and Andrew Brown, pleaded to the jurisdiction of the court, the plea being based upon the ground that, the application for change of venue having been granted upon their motion, the cause should have been transferred for trial to Clay County, which was the next adjoining county whose courthouse was nearest to the court-house of Montague County, and the one to which the law in such cases required that it should have been sent. Pasc. Dig., art. 2998.
This plea was overruled, and the two appellants and Jesse Brown, one of the accomplices, were placed upon their trial, they having been duly arraigned, and their plea of not guilty having been entered in Montague County before the venue of the cause was changed. The result of the trial was that appellants were found guilty of murder in the first degree, with the death penalty assessed, and Jesse Brown, the accomplice, was found not guilty, and [310]*310acquitted. It is from the judgment of conviction that these two appellants bring their case here, and ask its reversal. We regret that the counsel who defended with such skill and ability on the trial below have not appeared in this court, to aid us, by oral argument or brief, in solving the several interesting questions raised by them and presented in the record. These questions are contained and formulated in an assignment of errors attached to the transcript.
The first error noted in the assignment grew out of the motion to quash the indictment, which we have already held was sufficient, and the objections untenable.
The second and third errors can be treated together, since they relate to the same subject-matter, viz., the action of the court in changing the venue to Denton County, and overruling the plea to the jurisdiction predicated upon that action. In the bill of exceptions reserved by the defendants to the ruling on the plea to the jurisdiction, the court explains, in full, the reasons which induced the transfer of the case to Denton County ; and we find the same reasons embodied in the judgment overruling defendant’s plea to the jurisdiction. No essential difference is perceived in the point as here raised and that made in Preston’s case, except that in Preston’s case the defendant, in his application for the change of venue, expressly requested that the cause should be transferred to Clay County. In that case the action of the court was sustained, under the general authority conferred by the first section of the act of 1876 (Gen. Laws 15th Leg., p. 274) on the district judge presiding, upon his own motion to order a change of venue to any county in his own or in an adjoining district, when he had become satisfied that a trial alike fair and impartial to the accused and the State could not, from any cause, be had in the county where the cause was pending. It was further held in that case that the defendant should have excepted to the order in the court at the time it was made. Preston v. The State, 4 Texas Ct. App. [311]*311186. No bill of exceptions was saved at the time the court in this case changed the venue to Denton County. In our ■opinion, the court did not err in overruling defendant’s plea to the jurisdiction.
The fourth, fifth, and sixth errors assigned may also be treated and considered together, as growing out of the same order of the District Court granting a writ of certiorari to the clerk of Montague County to make out and send up a complete and perfect record of the proceedings had in his court prior to the change of venue. It is said that a suggestion of a diminution of the record, and the awarding of a certiorari for such purpose is unknown in the practice in the District Court. Technically speaking, this may be so. Still, the judge had the right to have a correct transcript of all the proceedings sent with the papers in the record to Denton Coun'y, in order that he might be advised, and that it might appear in the court where the case was finally tried, what steps and proceedings had been taken from its very inception to its close; and he had the right to issue any order necessary to compel the district clerk of Montague County to supply any deficiencies in his transcript which were required to make understood all the previous proceedings. Further than a mere technical objection to this order of the court, we are not informed, by bill of exceptions or otherwise, what is complained of; or where, how, or in what respect the defendants could possibly be injured by having the transcript from Montague County speak the truth by being made complete.
Admission of the testimony of the ten-year-old boy, Alvin Adams, is the seventh error assigned. In the bill of exceptions saved to the admission of the testimony, the preliminary examination of the boy by the court as to his knowledge of the obligations of an oath is detailed, and we are unable to perceive that the court erred in permitting the ■child to testify. It was the province of the court to satisfy [312]*312himself of the intelligence and competency of the witness; and, being a matter purely within his discretion, his action in admitting the testimony will not be revised, unless it is made clearly to appear that he has abused his discretion, to the injury or prejudice of the defendant. This question has been recently passed upon by this court in the case of Ake v. The State, decided at the present term, post, p. 398.
The eighth and ninth errors assigned are with reference to the charge of the court. We do not think they are well taken. Considered in its separate parts or paragraphs, or taken as a whole, the charge appears tó be an able, lucid, and apt exposition of the principles of law arising from and applicable to the various phases in which the case might be legitimately considered by the jury.
A charge as to its sufficiency or insufficiency is to be examined and tested by its applicability to the facts adduced in evidence. So far as we can see, there was no evidence in this case requiring a charge upon the legal effect of the testimony of an accomplice, and the necessity for its corroboration. There is no testimony tending to establish for the witness Southerland the relationship of accomplice, or particeps criminis, to the killing.
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White, J.
The appellants in this case were jointly indicted, as principals, in the District Court of Montague County, for the murder of one Doc McClain, which murder was alleged to have been committed by them on the first [309]*309day of May, 1876. George Brown, Sr., and Jessie Brown were also indicted with appellants, but they were charged with being accomplices to the murder, who were not present when it was committed, but who, prior to its commission, advised, commanded, and encouraged the others in its commission, and prepared arms and aid for the purpose of assisting the principals in the execution of the deed. Pase. Dig., art. 1814.
A motion was made to quash the indictment, which was overruled by the court, as we think, correctly, none of the objections urged in the motion being- well taken. On the . eleventh day of June, 1877, all the defendants united in an application for a change of venue, setting forth the usual statutory, and certain other special grounds, and their motion was accompanied by the supporting affidavits of eleven resident citizens of Montague County. This motion was granted, and the court ordered the venue changed and the cause transferred to the District Court of Denton County. At the February term of the District Court of Denton County, 1878, the appellants, George Brown, Jr., and Andrew Brown, pleaded to the jurisdiction of the court, the plea being based upon the ground that, the application for change of venue having been granted upon their motion, the cause should have been transferred for trial to Clay County, which was the next adjoining county whose courthouse was nearest to the court-house of Montague County, and the one to which the law in such cases required that it should have been sent. Pasc. Dig., art. 2998.
This plea was overruled, and the two appellants and Jesse Brown, one of the accomplices, were placed upon their trial, they having been duly arraigned, and their plea of not guilty having been entered in Montague County before the venue of the cause was changed. The result of the trial was that appellants were found guilty of murder in the first degree, with the death penalty assessed, and Jesse Brown, the accomplice, was found not guilty, and [310]*310acquitted. It is from the judgment of conviction that these two appellants bring their case here, and ask its reversal. We regret that the counsel who defended with such skill and ability on the trial below have not appeared in this court, to aid us, by oral argument or brief, in solving the several interesting questions raised by them and presented in the record. These questions are contained and formulated in an assignment of errors attached to the transcript.
The first error noted in the assignment grew out of the motion to quash the indictment, which we have already held was sufficient, and the objections untenable.
The second and third errors can be treated together, since they relate to the same subject-matter, viz., the action of the court in changing the venue to Denton County, and overruling the plea to the jurisdiction predicated upon that action. In the bill of exceptions reserved by the defendants to the ruling on the plea to the jurisdiction, the court explains, in full, the reasons which induced the transfer of the case to Denton County ; and we find the same reasons embodied in the judgment overruling defendant’s plea to the jurisdiction. No essential difference is perceived in the point as here raised and that made in Preston’s case, except that in Preston’s case the defendant, in his application for the change of venue, expressly requested that the cause should be transferred to Clay County. In that case the action of the court was sustained, under the general authority conferred by the first section of the act of 1876 (Gen. Laws 15th Leg., p. 274) on the district judge presiding, upon his own motion to order a change of venue to any county in his own or in an adjoining district, when he had become satisfied that a trial alike fair and impartial to the accused and the State could not, from any cause, be had in the county where the cause was pending. It was further held in that case that the defendant should have excepted to the order in the court at the time it was made. Preston v. The State, 4 Texas Ct. App. [311]*311186. No bill of exceptions was saved at the time the court in this case changed the venue to Denton County. In our ■opinion, the court did not err in overruling defendant’s plea to the jurisdiction.
The fourth, fifth, and sixth errors assigned may also be treated and considered together, as growing out of the same order of the District Court granting a writ of certiorari to the clerk of Montague County to make out and send up a complete and perfect record of the proceedings had in his court prior to the change of venue. It is said that a suggestion of a diminution of the record, and the awarding of a certiorari for such purpose is unknown in the practice in the District Court. Technically speaking, this may be so. Still, the judge had the right to have a correct transcript of all the proceedings sent with the papers in the record to Denton Coun'y, in order that he might be advised, and that it might appear in the court where the case was finally tried, what steps and proceedings had been taken from its very inception to its close; and he had the right to issue any order necessary to compel the district clerk of Montague County to supply any deficiencies in his transcript which were required to make understood all the previous proceedings. Further than a mere technical objection to this order of the court, we are not informed, by bill of exceptions or otherwise, what is complained of; or where, how, or in what respect the defendants could possibly be injured by having the transcript from Montague County speak the truth by being made complete.
Admission of the testimony of the ten-year-old boy, Alvin Adams, is the seventh error assigned. In the bill of exceptions saved to the admission of the testimony, the preliminary examination of the boy by the court as to his knowledge of the obligations of an oath is detailed, and we are unable to perceive that the court erred in permitting the ■child to testify. It was the province of the court to satisfy [312]*312himself of the intelligence and competency of the witness; and, being a matter purely within his discretion, his action in admitting the testimony will not be revised, unless it is made clearly to appear that he has abused his discretion, to the injury or prejudice of the defendant. This question has been recently passed upon by this court in the case of Ake v. The State, decided at the present term, post, p. 398.
The eighth and ninth errors assigned are with reference to the charge of the court. We do not think they are well taken. Considered in its separate parts or paragraphs, or taken as a whole, the charge appears tó be an able, lucid, and apt exposition of the principles of law arising from and applicable to the various phases in which the case might be legitimately considered by the jury.
A charge as to its sufficiency or insufficiency is to be examined and tested by its applicability to the facts adduced in evidence. So far as we can see, there was no evidence in this case requiring a charge upon the legal effect of the testimony of an accomplice, and the necessity for its corroboration. There is no testimony tending to establish for the witness Southerland the relationship of accomplice, or particeps criminis, to the killing. True, he witnessed the deed, but there is nothing unreasonable or improbable in his statement that he accidentally saw it perpetrated; and though it was attempted to be shown that it was physically impossible he could have seen the occurrence as detailed by him, yet upon this point there was ample and positive testimony to support his statement; and we further find it supported and corroborated in many other material and immaterial respects. True, he tells us that he said nothing to any one about the deed, and his lm.owL. Jge concerning its perpetration and perpetrators; but the reason he gives for his reticence, until after the arrest of the defendants, is not only a good one, but a highly significant commentary upon a lamentable condition of affairs in some portions of the State, where witnesses have been most foully assassinated [313]*313to get rid of their testimony, or have only escaped death by fleeing, like hunted criminals, from their country and their homes.
In all those cases where the law treats a witness in the light of an accomplice, or particeps criminis, there must appear facts, or circumstances establishing the fact, or creating a reasonable presumption of guilty complicity. Kelly v. The State, 1 Texas Ct. App. 627; Carroll v. The State, 3 Texas Ct. App. 117; Davis v. The State, 2 Texas Ct. App. 588; Irwin v. The State, 1 Texas Ct. App. 301.
A motion for a new trial was made by appellants, the main ground of which was to obtain the testimony, at another trial, of their co-defendant, Jesse Brown, who had just been acquitted, and of whose testimony, up to the time of his acquittal, they were deprived by virtue of the fact that he was jointly indicted and on trial with them; and, in addition to their own sworn statement as to what the said witness would swear, we have the affidavit of Jesse Brown himself, setting out the facts which he will prove. Succinctly stated, the substance of what it is said he will prove is, that he will contradict the witness Southerland in some of his declarations with regard to statements made to him by the affiant, Jesse Brown; and, further, the witness Jesse Brown will prove that, on the morning of the day McClain was killed, three armed strangers came to his house and inquired for McClain, and that McClain was hunted after by a party of men from Bed Biver and the Nation. Further, that one Milas Miller had told affiant that he (Miller) was going to kill McClain, about a week before McClain was killed; and that Miller told him (affiant) that he was watching around Johnson’s house for McClain and one Collier, and if they did not leave the country he would kill them; that he (Miller) told him that he had found out in the Indian Nation that McClain and Collier were thieves, and that there was a party coming to kill them.
To entitle a party to a new trial in order to obtain the [314]*314testimony of an acquitted co-defendant, it seems that it must appear that the testimony which he can give is not only important and material, but that it is also legal and ■competent evidence. Rich v. The State, 1 Texas Ct. App. 208; Lyles v. The State, 41 Texas, 172; The People v. Vermilyea, 7 Cow. 369; Huebner v. The State, 3 Texas Ct. App. 458.
Now, let us apply these tests to the application before us. So far as the proposed testimony concerns the evidence of the witness Southerland, it could only go towards his impeachment by contradicting his statements. It is a fixed and well-established rule of law that a new trial will not be granted for the purpose of impeaching a witness. Hauck v. The State, 1 Texas Ct. App. 357; Terry v. The State, 3 Texas Ct. App. 239. Besides, from the proposed facts stated in the affidavit, it does not reasonably appear that such proof, if admitted, would probably change the result in another trial. West v. The State, 2 Texas Ct. App. 209.
Was the other portion of the proposed evidence competent and admissible, —that which referred to the armed men from the Indian Nation, and the declarations of Milas Miller, showing his willingness, motive, and intention to kill deceased? In the Boothe case the new trial was sought upon similar grounds, and this court held that such evidence was not competent or admissible, citing Crookham v. The State, 5 W. Va. 510; The State v. Davis, 77 N. C. 483; Bowen v. The State, 3 Texas Ct. App. 617; Boothe v. The State, 4 Texas Ct. App. 202.
And where it was proposed to prove that a person other than the prisoner actually admitted that he did the shooting which killed the party for whose murder the prisoner was on trial, it was held that it was not admissible evidence. Moughon v. The State, 57 Ga. 102. And again: newly discovered evidence to the effect that a witness is prepared to swear that she heard a person, other than the defendant, admit that she did the criminal act of which the defendant [315]*315was convicted, will not authorize a new trial. Attaway v. The State, 56 Ga. 363.
The court did not err in refusing a new trial on the grounds set out in the motion and affidavits.
It only remains for us to pass upon the sufficiency of the evidence; and whilst some irregularities appear with regard to the preparation of the statement of facts, it is nowhere questioned that the statement as exhibited by the record is a full and complete showing of all the facts elicited upon the trial. We have considered it with great care, knowing that the lives of two human beings were involved in the history of the transaction which it disclosed. With unerring certainty do the facts, so far as we can see, point to defendants as two of the guilty agents who cruelly waylaid and coolly assassinated the murdered man. That he, himself, may have been a bad man — a thief, or even a murderer—would, if it had been proven, afford no mitigation, extenuation, or excuse for ‘ ‘ the deep damnation of his taking off ” by these defendants. He could not possibly have been guilty of any greater or fouler crime than that which they have perpetrated in his killing, — the crime of murder in the first degree. For such crime the law denounces the penalty of death by hanging. If the punishment is the greatest and most horrible which can be inflicted, so the terror of its certainty should be made to appear in all suitable cases, that men may be deterred from the commission of murder by a consciousness that they cannot escape its penalties.
We believe that these appellants, George Brown, Jr., and Andrew Brown, have been fairly and legally tried and convicted of murder in the first degree ; and so believing, the judgment of the lower court, convicting them, is in all things affirmed.
Affirmed.