White, P. J.
On the thirty-first day of October, 1876, the grand jury of Montague County returned into court a bill of indictment chargingthis appellant and one James Preston with the murder of Selena England on the previous twenty-sixth day of August. At the June term, 1877, Preston applied for"a change of venue in the case, on account of the prejudice existing against him in Montague County; and upon the hearing of this application the court made its order in the following words, viz.: “ Then came on to be heard the defendant’s motion for a change of venue, and after hearing said motion, and argument of counsel thereon, it is the opinion of the court that the defendants cannot have a fair and impartial trial in Montague County. It is therefore ordered and decreed by the court that said motion for change of venue be sustained and granted, and that said cause be transferred to the next term of the District Court of Cooke County, Texas,” etc. At the time this order was entered, no severance had been applied for by defendants, and the defendant Krebs interposed no objection to the order, though the judgment recital shows that he was present in court both in person and by attorney.
■ In the District Court of Cooke County the defendant Krebs filed a plea to the jurisdiction of the court, to the [25]*25effect that he was not a party to and had never applied for or consented to the change of venue, and that in so far as he was concerned his case was still of right pending in the District Court of Montague. The plea to the jurisdiction was. overruled by the court, and this ruling is one of the main errors complained of on the appeal- here presented.
Were this question properly before us for revision, we might find some, difficulty in its solution, our statute being defective in that it does not prescribe the proper proceedings in such cases, and the decisions of the courts of other States where there is,a like defect in their statutes not being uniform as to the practice. It is held in New York, for instance, that where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants although it is a case in which every defendant is entitled to a separate trial. The People v. Baker, 3 Park. Cr. 181. On the contrary, in Missouri the rule is that where two are jointly indicted, and only one' applies for a change of venue, an order removing the cause will be effectual only as to the one so applying. The State v. Wetherford, 25 Mo. 439. And this same doctrine is positively announced in The State v. Denton, 6 Coldw. 539, and practically recognized as correct in John v. The State, 2 Ala. 290; The State v. Martin, 2 Ired. (N. C.) 101; Clark v. The People, 2 Scam. 117, and Hunter v. The People, 2 Scam. 454.
In view of this contrariety of decision, we do not in this instance feel called upon to determine which rule should obtain with us, but will content ourselves to await a case in which the question is properly submitted for adjudication. As exhibited in this record, the correctness of the action of the court in overruling the plea will not be inquired into, because no objections were urged nor exceptions saved' by defendant in the District Court of Montague County to the order of the court changing the venue ; and error in chang[26]*26ing the venue cannot be availed of by plea to the jurisdiction in the new tribunal. Harrison v. The State, 3 Texas Ct. App. 558; Brown v. The State, 6 Texas Ct. App. 286; Wheeler v. The State, 42 Ga. 306; Rothschild v. The State (decided at the present term), 7 Texas Ct. App. 519.
After his plea to the jurisdiction was overruled, defendant Krebs filed his affidavit, under the statute, to the effect that there was no evidence against his co-defendant, Preston, and praying a severance in order that Preston might be first put upon trial, so that on his acquittal his evidence could be used by Krebs on trial of the latter. The severance was granted ; Preston was tried, was convicted of murder of the first degree, and appealed from the judgment to this court, where his appeal was still pending when the case against Krebs was again reached and called for trial in the lower court. It was urged that under the circumstances the case could not be proceeded with until Preston’s appeal was determined in this court, and that to force him to trial would be a practical abrogation of his rights under the statute (Gen. Laws 14th Leg., 1874, p. 29), and which rights had been expressly recognized in the order granting the severance.
The question is not a new or open one. In the case of Slawson v. The State, decided at the last Tyler Term (7 Texas Ct. App. 63), and the case of Myers v. The State, decided at the present term (7 Texas Ct. App. 640), it was. held that where a severance was had to obtain the testimony of a joint co-defendant against whom it was alleged that there was no evidence, and upon the trial of such co-defendant he was convicted, the conviction was a full and complete answer to the affidavit that there was no evidence against him, and the order of severance became functus officio. In Myers’s case it was said : “ The law never contemplated that a defendant who had procured this proceeding could delay the trial until the other party could test the legality of his conviction by an appeal.”
[27]*27. No error was committed by the court in overruling defendant’s application for a continuance. Being a fourth application, it was a matter entirely within the sound discretion of the court. In addition to this, die record shows that no possible injury could have been done defendant, because one of the witnesses, Knight, subsequently appeared and testified; the testimony of the witnesses Musick and Poland, as taken upon former trials, was offered and read bv defendant without objection on the part of the State; and as to the other three witnesses, John Walker, Joseph and Wilborn Cothrum, if they had been present they would not have been permitted to testify to Bill Taylor’s statements and declarations, because such testimony would have been hearsay and inadmissible.
With regard to the fourth bill of exceptions, the rule is settled that objections to jurors will not be heard or entertained if the jury has been selected and completed without exhausting the peremptory challenges which the law allows a defendant; .for as long as a defendant has a peremptory challenge, it is his business to avail himself of it to get rid of an objectionable juror when the court refuses to stand him aside ; and having availed himself of his challenge, and gotten rid of him, it cannot be seen how he can possibly be injured if the panel has been completed without exhausting his remaining challenges, and forcing upon him other jurors to his prejudice.
The fifth and sixth bills of exception were taken to the action of the court in permitting the witnesses to testify to the dying declarations of Mrs. England, the murdered woman. These objections are not sustained by the record. A proper predicate, in every way substantially complying with the statutory requirements, was fully established. Pas. Dig., art. 3125; Lister v. The State, 1 Texas Ct. App. 739.
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White, P. J.
On the thirty-first day of October, 1876, the grand jury of Montague County returned into court a bill of indictment chargingthis appellant and one James Preston with the murder of Selena England on the previous twenty-sixth day of August. At the June term, 1877, Preston applied for"a change of venue in the case, on account of the prejudice existing against him in Montague County; and upon the hearing of this application the court made its order in the following words, viz.: “ Then came on to be heard the defendant’s motion for a change of venue, and after hearing said motion, and argument of counsel thereon, it is the opinion of the court that the defendants cannot have a fair and impartial trial in Montague County. It is therefore ordered and decreed by the court that said motion for change of venue be sustained and granted, and that said cause be transferred to the next term of the District Court of Cooke County, Texas,” etc. At the time this order was entered, no severance had been applied for by defendants, and the defendant Krebs interposed no objection to the order, though the judgment recital shows that he was present in court both in person and by attorney.
■ In the District Court of Cooke County the defendant Krebs filed a plea to the jurisdiction of the court, to the [25]*25effect that he was not a party to and had never applied for or consented to the change of venue, and that in so far as he was concerned his case was still of right pending in the District Court of Montague. The plea to the jurisdiction was. overruled by the court, and this ruling is one of the main errors complained of on the appeal- here presented.
Were this question properly before us for revision, we might find some, difficulty in its solution, our statute being defective in that it does not prescribe the proper proceedings in such cases, and the decisions of the courts of other States where there is,a like defect in their statutes not being uniform as to the practice. It is held in New York, for instance, that where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants although it is a case in which every defendant is entitled to a separate trial. The People v. Baker, 3 Park. Cr. 181. On the contrary, in Missouri the rule is that where two are jointly indicted, and only one' applies for a change of venue, an order removing the cause will be effectual only as to the one so applying. The State v. Wetherford, 25 Mo. 439. And this same doctrine is positively announced in The State v. Denton, 6 Coldw. 539, and practically recognized as correct in John v. The State, 2 Ala. 290; The State v. Martin, 2 Ired. (N. C.) 101; Clark v. The People, 2 Scam. 117, and Hunter v. The People, 2 Scam. 454.
In view of this contrariety of decision, we do not in this instance feel called upon to determine which rule should obtain with us, but will content ourselves to await a case in which the question is properly submitted for adjudication. As exhibited in this record, the correctness of the action of the court in overruling the plea will not be inquired into, because no objections were urged nor exceptions saved' by defendant in the District Court of Montague County to the order of the court changing the venue ; and error in chang[26]*26ing the venue cannot be availed of by plea to the jurisdiction in the new tribunal. Harrison v. The State, 3 Texas Ct. App. 558; Brown v. The State, 6 Texas Ct. App. 286; Wheeler v. The State, 42 Ga. 306; Rothschild v. The State (decided at the present term), 7 Texas Ct. App. 519.
After his plea to the jurisdiction was overruled, defendant Krebs filed his affidavit, under the statute, to the effect that there was no evidence against his co-defendant, Preston, and praying a severance in order that Preston might be first put upon trial, so that on his acquittal his evidence could be used by Krebs on trial of the latter. The severance was granted ; Preston was tried, was convicted of murder of the first degree, and appealed from the judgment to this court, where his appeal was still pending when the case against Krebs was again reached and called for trial in the lower court. It was urged that under the circumstances the case could not be proceeded with until Preston’s appeal was determined in this court, and that to force him to trial would be a practical abrogation of his rights under the statute (Gen. Laws 14th Leg., 1874, p. 29), and which rights had been expressly recognized in the order granting the severance.
The question is not a new or open one. In the case of Slawson v. The State, decided at the last Tyler Term (7 Texas Ct. App. 63), and the case of Myers v. The State, decided at the present term (7 Texas Ct. App. 640), it was. held that where a severance was had to obtain the testimony of a joint co-defendant against whom it was alleged that there was no evidence, and upon the trial of such co-defendant he was convicted, the conviction was a full and complete answer to the affidavit that there was no evidence against him, and the order of severance became functus officio. In Myers’s case it was said : “ The law never contemplated that a defendant who had procured this proceeding could delay the trial until the other party could test the legality of his conviction by an appeal.”
[27]*27. No error was committed by the court in overruling defendant’s application for a continuance. Being a fourth application, it was a matter entirely within the sound discretion of the court. In addition to this, die record shows that no possible injury could have been done defendant, because one of the witnesses, Knight, subsequently appeared and testified; the testimony of the witnesses Musick and Poland, as taken upon former trials, was offered and read bv defendant without objection on the part of the State; and as to the other three witnesses, John Walker, Joseph and Wilborn Cothrum, if they had been present they would not have been permitted to testify to Bill Taylor’s statements and declarations, because such testimony would have been hearsay and inadmissible.
With regard to the fourth bill of exceptions, the rule is settled that objections to jurors will not be heard or entertained if the jury has been selected and completed without exhausting the peremptory challenges which the law allows a defendant; .for as long as a defendant has a peremptory challenge, it is his business to avail himself of it to get rid of an objectionable juror when the court refuses to stand him aside ; and having availed himself of his challenge, and gotten rid of him, it cannot be seen how he can possibly be injured if the panel has been completed without exhausting his remaining challenges, and forcing upon him other jurors to his prejudice.
The fifth and sixth bills of exception were taken to the action of the court in permitting the witnesses to testify to the dying declarations of Mrs. England, the murdered woman. These objections are not sustained by the record. A proper predicate, in every way substantially complying with the statutory requirements, was fully established. Pas. Dig., art. 3125; Lister v. The State, 1 Texas Ct. App. 739. It was further objected, however, that the dying declarations having been reduced to writing, the written statement was the best and only legitimate testimony. The [28]*28record before us does not show affirmatively that the dying declarations were ever reduced to writing, and it does show that Mrs. England made sevéral statements at different times to different parties, all of whom, were permitted to testify to the statements made them; and the statements so made all correspond with singular unanimity in all material matters. To have made the objection tenable, the defendant should have established that the declarations had in fact been reduced to writing, and signed by the declarant; in which event the paroi evidence would have been inadmissible, unless the prosecution had shown that it was not in the power of the State to produce the writing. Mr. Wharton, in his work on Homicide, declares the rule thus : “ If the declaration of the deceased, at the time of his making it, be reduced into writing, the written document must be given in evidence, and no paroi testimony respecting its contents can be admitted. And it has been held in England that if a declaration in articula mortis be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive paroi evidence of a declaration which is not itself produced when its production is possible. But where the dying person repeated his declaration three several times in the course of the same day, the fact of its having been committed to writing in the presence of a magistrate on the second occasion will not, it seems, exclude paroi evidence of the others, where it is not in the power of the prosecutor at the trial to give that which has been committed to writing in evidence.” Whart; on Hom., sect. 766; 1 Greenl. on Ev., sect. 161.
But, as before stated, the fact is not established, so far as this record goes, that the dying declarations had been in fact reduced to writing; and in the absence of such showing' we are unable to see that the court committed any error in permitting the introduction of the testimony objected to.
A witness to dying declarations, if he is not able to state [29]*29the precise language used by declarant, may state the substance of the. declarations. 1 Greenl. on Ev. (12th ed.), sect. 161 a. This rule answers one of the objections presented by the seventh bill of exceptions to the evidence of Vanhoozier. The other error complained of in said bill is answered as stated by the judge in his explanation,—that the witness was asked to state his opinion, instead of the facts.
The eighth and last bill of exceptions calls in question the sufficiency and applicability of the charge of the court. No particular error in the charge is pointed out, nor is any shown, or attempted to be shown, in the able brief of counsel for the appellant. We have been unable to discover any error of omission or commission on the part of the learned judge in his submission of the law as applicable to the facts. The charge is full and unobjectionable, and seems to have been satisfactory to defendant at the time, for no additional charges were asked in his behalf.
When we consider the only other remaining question in the case, —the sufficiency of the evidence to support the verdict, — we feel no hesitancy in affirming that in our opinion the jury could not have done otherwise than find this defendant guilty, and finding him guilty, say so by their verdict, that death might be inflicted upon him as an appropriate punishment for his crime. Whatever, if any, doubts might arise as to other parties implicated with him in the murder of the England family, as to the fact of his guilt, judging solely from the evidence presented in this record, we do not see that any dispassionate mind could for a single moment hesitate, much less doubt. As here written, the circumstantial evidence alone and of itself furnishes against him “confirmation strong as proof of holy writ.” Over and above that, he is positively identified by those dying exclamations of Susie Taylor, “ O mother ! old Ben Krebs has come to kill us all,” and “O mother! Ben Krebs has killed me ; ” and again by Mrs. England, who, conscious [30]*30of her approaching death, told him, when brought into her presence for identification, “that she was not mistaken; that he was the man who did it; that she knew him by his whiskers, by his Dutch talk and curses, and she said she even knew him by that old white hat he was then holding in his hands.” At the time of his trial and conviction, two-years and a half had elapsed since that fatal Saturday night when old man England, his aged wife, her manly son, and her youthful daughter were all inhumanly murdered in their home ; and every means which the law afforded and a justly outraged and thoroughly aroused community could devise to ferret out the crime and its perpetrators had been used and exhausted, while able counsel for the accused, with untiring energy, have exerted all their skill and ability to meet-the issue and avert its consequences ; and yet, upon a trial had in another county than that where the crime was committed, characterized in every respect by fairness and impartiality, the State has fully made out and established his guilt.
We find in the record of his conviction no error entitling* him to another trial, and the judgment against him is therefore in all things affirmed.
Affirmed.