BETHEA, Judge.
The appellant was convicted for the offense of murder, and his punishment assessed at ninety-nine years in the penitentiary.
The state relied for a conviction upon the testimony of William Franks and Ida V. Sickles, accomplices. Ida V. Sickles was the wife of the deceased (Jim Sickles), and William Franks was the only eye-witness to the killing. Franks testified that the deceased came to his death without a struggle after the appellant had placed a rag over deceased’s face, and that, at that time, witness smelled chloroform. This witness further testified that he and the appellant, after deceased was dead, in order to cover up the crime, carried deceased out of the hay barn in which the killing occurred, and tied a rope around the foot of the dead man, and around the horn of a saddle on the horse deceased had been riding, and turned the horse loose; that the horse dragged deceased some distancé over a hay meadow; that the appellant then drove his wagon some three or four miles to his home; that the accomplice witness followed along later and gave the alarm, making the statement that deceased came to his death by accident.
It was the contention of the state that deceased came to his death as a result of the administration of chloroform, or by
strangling, or smothering, or choking, as alleged in the indict- • ment.
The accomplice witness Franks testified that the appellant, with a rag in his hands, walked up behind deceased; that appellant put this rag over deceased’s face; that appellant pulled deceased down, and fell on top of him, and remained on top of him about ten minutes. The post-mortem examination was conducted by a physician who testified that there were no bones broken, no dislocations, no bruises of the skin, and, in fact, no evidence of any violence having been used such as would cause the death of the deceased.
The theory of the state was that appellant was on intimate terms with the wife of deceased; that appellant and the wife of deceased had taken out a large amount of insurance on the life of deceased without the knowledge of deceased; and that they had connived together to put deceased to death and collect the insurance. The accomplice witness Ida V. Sickles, wife of the deceased, in her testimony, bore out this theory of the state.
The testimony as given by employees of various insurance companies was to the effect that at the time of the death of deceased there were in existence policies totaling §17,500 which were payable in the event deceased came to his death as the result of accident. Each of these employees testified that appellant was present at the time of the writing of the application for the insurance on the life of deceased. They also testified to appellant’s desire to secure double indemnity insurance on the life of deceased. Their testimony also reveals that appellant paid, and promised to pay, all premiums on such policies. The policies were issued during a period of three or four months immediately preceding deceased’s death.
The record further discloses that deceased was a tenant farmer on the farm of appellant.
The theory of the defense was that deceased came to his death by being dragged by a horse. The testimony of the pathologist who held the post-mortem examination tends to offset this theory of appellant, and, on the other hand, tends to establish the allegations in the indictment that deceased came to his death as a result of inhaling chloroform, and as a result of appellant “holding and closing the mouth and nose of the said Jim Sickles, and by strangulating and smothering the said Jim Sickles so that he could not breathe.”
There are in the record twenty-three bills of exception. The first bill of exception contains about 247 pages of typewritten matter and complains of the refusal of the court to grant appél
lant’s application for a change of venue. We have closely examined this bill of exception, and find that some twenty-five witnesses testified for the appellant to the effect that there existed in the county prejudice against him of such a nature as would deprive him of an opportunity to obtain a fair and impartial trial. The state filed an answer controverting appellant’s application, and offered some forty-seven witnesses who testified that, in their opinion, the appellant could secure a fair and impartial trial in the county. The issue on the question of change of venue was sharply drawn. The bill of exception, however, discloses an abundance of evidence to support the court’s conclusion, either that the motion should, or should not, have been granted. However, we think the preponderance of the evidence was in favor of the state’s contention and that the court did not err in refusing to grant appellant’s application for a change of venue. The rule in this state is:
“Unless it is clear that the trial court has abused or arbitrarily exercised a judicial discretion, the action in refusing change of venue will be sustained on appeal.”
From a careful examination of this bill of exception, we are unable to conclude that the learned trial judge, in passing on this issue, was guilty of any abuse of the discretion lodged in him. Barnett v. State, 176 S. W. 580; Mooney v. State, 176 S. W. 52; Hemphill v. State, 170 S. W. 154; Ferguson v. State, 61 Tex. Crim. Rep. 152; Branch’s Penal Code, Sec. 299.
The next bill of exception, No. 3 in the record, complains of the refusal of the court to quash the venire. This is a rather voluminous bill and involves an interesting question. The appellant’s contention is that, inasmuch as Arts. 93, 94, 95, 96 and 97, Vernon’s Code of Criminal Procedure, 1905, have been omitted from the new code, the learned trial judge erred in selecting jury commissioners and having them draw grand and petit jurors for the special term convened by him on February 8. It seems the District Judge of Hopkins County after having his attention called to the matter, failed and refused to appoint, at the regular August term in 1926, a jury commission to select grand and petit jurors for the following regular term, which was to convene on the fourth Monday in January, 1927. On the last named date, the regular term was convened, and such business as in the court’s opinion could lawfully be transacted was disposed of, and such regular term was adjourned, and a special term of the District Court was called, convened, and held in said county on the 8th of February, 1927. Upon the first day of said special term, the learned trial judge selected
and had summoned a jury commission to select a grand jury and petit juries to function during said special term, and same were so selected and empaneled, and said newly empaneled grand jury returned the indictment against appellant upon which he was tried and convicted.
The contention of appellant is that this procedure was unauthorized. He points out that since 1905, and prior to the adoption of the present code of 1925, the Code of Criminal Procedure for the State of Texas had carried Arts. 93, 94, 95, 96 and 97, which provided for special terms of the District Court for the trial of criminals, and which also provided that a person indicted at a special term of a District Court may be tried at such special term. He also points out that similar provisions were included in the civil statutes during the same period of time, being Arts.
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BETHEA, Judge.
The appellant was convicted for the offense of murder, and his punishment assessed at ninety-nine years in the penitentiary.
The state relied for a conviction upon the testimony of William Franks and Ida V. Sickles, accomplices. Ida V. Sickles was the wife of the deceased (Jim Sickles), and William Franks was the only eye-witness to the killing. Franks testified that the deceased came to his death without a struggle after the appellant had placed a rag over deceased’s face, and that, at that time, witness smelled chloroform. This witness further testified that he and the appellant, after deceased was dead, in order to cover up the crime, carried deceased out of the hay barn in which the killing occurred, and tied a rope around the foot of the dead man, and around the horn of a saddle on the horse deceased had been riding, and turned the horse loose; that the horse dragged deceased some distancé over a hay meadow; that the appellant then drove his wagon some three or four miles to his home; that the accomplice witness followed along later and gave the alarm, making the statement that deceased came to his death by accident.
It was the contention of the state that deceased came to his death as a result of the administration of chloroform, or by
strangling, or smothering, or choking, as alleged in the indict- • ment.
The accomplice witness Franks testified that the appellant, with a rag in his hands, walked up behind deceased; that appellant put this rag over deceased’s face; that appellant pulled deceased down, and fell on top of him, and remained on top of him about ten minutes. The post-mortem examination was conducted by a physician who testified that there were no bones broken, no dislocations, no bruises of the skin, and, in fact, no evidence of any violence having been used such as would cause the death of the deceased.
The theory of the state was that appellant was on intimate terms with the wife of deceased; that appellant and the wife of deceased had taken out a large amount of insurance on the life of deceased without the knowledge of deceased; and that they had connived together to put deceased to death and collect the insurance. The accomplice witness Ida V. Sickles, wife of the deceased, in her testimony, bore out this theory of the state.
The testimony as given by employees of various insurance companies was to the effect that at the time of the death of deceased there were in existence policies totaling §17,500 which were payable in the event deceased came to his death as the result of accident. Each of these employees testified that appellant was present at the time of the writing of the application for the insurance on the life of deceased. They also testified to appellant’s desire to secure double indemnity insurance on the life of deceased. Their testimony also reveals that appellant paid, and promised to pay, all premiums on such policies. The policies were issued during a period of three or four months immediately preceding deceased’s death.
The record further discloses that deceased was a tenant farmer on the farm of appellant.
The theory of the defense was that deceased came to his death by being dragged by a horse. The testimony of the pathologist who held the post-mortem examination tends to offset this theory of appellant, and, on the other hand, tends to establish the allegations in the indictment that deceased came to his death as a result of inhaling chloroform, and as a result of appellant “holding and closing the mouth and nose of the said Jim Sickles, and by strangulating and smothering the said Jim Sickles so that he could not breathe.”
There are in the record twenty-three bills of exception. The first bill of exception contains about 247 pages of typewritten matter and complains of the refusal of the court to grant appél
lant’s application for a change of venue. We have closely examined this bill of exception, and find that some twenty-five witnesses testified for the appellant to the effect that there existed in the county prejudice against him of such a nature as would deprive him of an opportunity to obtain a fair and impartial trial. The state filed an answer controverting appellant’s application, and offered some forty-seven witnesses who testified that, in their opinion, the appellant could secure a fair and impartial trial in the county. The issue on the question of change of venue was sharply drawn. The bill of exception, however, discloses an abundance of evidence to support the court’s conclusion, either that the motion should, or should not, have been granted. However, we think the preponderance of the evidence was in favor of the state’s contention and that the court did not err in refusing to grant appellant’s application for a change of venue. The rule in this state is:
“Unless it is clear that the trial court has abused or arbitrarily exercised a judicial discretion, the action in refusing change of venue will be sustained on appeal.”
From a careful examination of this bill of exception, we are unable to conclude that the learned trial judge, in passing on this issue, was guilty of any abuse of the discretion lodged in him. Barnett v. State, 176 S. W. 580; Mooney v. State, 176 S. W. 52; Hemphill v. State, 170 S. W. 154; Ferguson v. State, 61 Tex. Crim. Rep. 152; Branch’s Penal Code, Sec. 299.
The next bill of exception, No. 3 in the record, complains of the refusal of the court to quash the venire. This is a rather voluminous bill and involves an interesting question. The appellant’s contention is that, inasmuch as Arts. 93, 94, 95, 96 and 97, Vernon’s Code of Criminal Procedure, 1905, have been omitted from the new code, the learned trial judge erred in selecting jury commissioners and having them draw grand and petit jurors for the special term convened by him on February 8. It seems the District Judge of Hopkins County after having his attention called to the matter, failed and refused to appoint, at the regular August term in 1926, a jury commission to select grand and petit jurors for the following regular term, which was to convene on the fourth Monday in January, 1927. On the last named date, the regular term was convened, and such business as in the court’s opinion could lawfully be transacted was disposed of, and such regular term was adjourned, and a special term of the District Court was called, convened, and held in said county on the 8th of February, 1927. Upon the first day of said special term, the learned trial judge selected
and had summoned a jury commission to select a grand jury and petit juries to function during said special term, and same were so selected and empaneled, and said newly empaneled grand jury returned the indictment against appellant upon which he was tried and convicted.
The contention of appellant is that this procedure was unauthorized. He points out that since 1905, and prior to the adoption of the present code of 1925, the Code of Criminal Procedure for the State of Texas had carried Arts. 93, 94, 95, 96 and 97, which provided for special terms of the District Court for the trial of criminals, and which also provided that a person indicted at a special term of a District Court may be tried at such special term. He also points out that similar provisions were included in the civil statutes during the same period of time, being Arts. 1720, 1721, 1722, 1723 and 1724. The old Arts. 93, 94, 95, 96 and 97 were not carried into the new Code of Criminal Procedure. Appellant refers us to Art. 1 of the Code of Criminal Procedure, 1925, and likewise calls this, court’s attention to the general repealing clause of the Acts of 1925, contending that for the first time since 1905 the Acts of 1925 with reference to criminal procedure governs the trial of criminal cases, and that Arts. 93, 94, 95, 96 and 97 having been left out, and therefore repealed, no provision is made for the trial of criminals at special terms of the District Court.
We are unable to agree with this contention. Revised Civil Statutes, 1925, Arts. 1919, 1920 and 1921 provide that a special term of the District Court jury commissioners may be appointed and may select and draw grand and petit jurors for such special term of court. Such statutes further provide for the calling of a special term of the District Court, either at a term of court then in session, or during vacation. There seems to be some confusion as to the distinction between the mánner of selecting grand and petit jurors for a special term of court and selecting them for a regular term of court. However, in the absence of mandatory instructions for the selection of jurors by jury commissioners at a special term of court (which instructions are provided by law), the fair and proper means of selection of jurors, grand and petit, which has been judicially sanctioned, is by the method of a jury commission. It is evident that a District Judge might not, at a regular term, see the necessity of convening a special term of court. Nevertheless, the District Judge is authorized to appoint jury commissioners at a special term of District Court for the selection of grand and petit jurors.
The appellant stresses the omission in the Code of Criminal Procedure of Arts. 93, 94, 95, 96 and 97, providing for a special term of the District Court, contending that same have been repealed by the new code. The intentional omission from such procedure can be accounted for in this way: The civil statutes, adopted at the same time as the Code of Criminal Procedure, and by the same legislative body, provides for the calling of special terms of the District Court for the trial of both civil and criminal cases, and provides rules governing same. It would certainly be a broad assertion to say that the time for holding District Court to try criminal cases can only be provided for by laws incorporated in the Code of Criminal Procedure. Should this be a correct proposition of law, it would follow, inasmuch as our Code of Criminal Procedure has never provided a definite date for holding terms of the District Court in any county of this State, that all convictions heretofore had in the District Courts, at terms of court held at times provided by civil statutes, namely, regular terms and special terms, are invalid. The appellate courts of our state, both civil and criminal, have uniformly held that there does not exist such a breach of distinction between civil and criminal statutes and their provisions, in the way of procedure, but that the one is dependent upon the other, and constructions must be made in the light of both. Russell v. State, 242 S. W. 240; Ex Parte Clemming, 234 S. W. 667; Chant v. State, 166 S. W. 513; Newton v. State, 93 Tex. Crim. Rep. 314, 247 S. W. 281; Ex Parte Holland, 91 Tex. Crim. Rep. 339, 238 S. W. 654; Stephens v. State, 93 Tex. Crim. Rep. 164, 245 S. W. 687; Wilson v. State, 87 Tex. Crim. Rep. 538, 223 S. W. 217; Elliott v. State, 58 Tex. Crim. Rep. 200, 125 S. W. 568; Bennett v. State, 95 Tex. Crim. Rep. 422, 254 S. W. 949.
Bill of exception No. 5 complains that the learned trial judge failed to instruct the jury to return a verdict of not guilty. This challenges the sufficiency of the evidence and presents no error.
Bills of exception Nos. 6, 7 and 8 complain of the refusal of special charges. The special charges complained of in this bill are fully covered by the court’s main charge.
Bills of exception Nos. 9, 10, 12, 13, 18, “18” and 19 complain of the action of the learned trial judge in not giving special charges upon the testimony of accomplices. We have examined the charge carefully and find that the learned trial judge gave an appropriate charge for this character of case, and we do not think the court erred in refusing to give said specially
requested charges. King v. State, 123 S. W. 135; Brown v. State, 124 S. W. 101. We think these authorities dispose of the only serious question raised in the exceptions to the court’s charge and of the bills of exception relating to accomplice testimony.
Bill of exception No. 11 presents no error.
Appellant, in his bill of exception No. 14, complains of the refusal of the trial court to give a special charge which stated that if the accomplice William Franks implicated appellant in order to keep from being killed or if there existed a reasonable doubt thereof, to acquit him. There is no evidence raising the issue of duress, and we think the court very properly refused this charge.
By bill of exception No. 15, appellant complains of the refusal of a charge to the effect that if the accomplice was connected, directly or indirectly, with the killing of deceased, for the purpose of participating in any moneys from the widow of the deceased, or if a reasonable doubt thereof existed, to acquit him. We know of no reason why the fact that the accomplice expected remuneration for his part in the affair would entitle appellant to be relieved from the consequence of murder.
Bill of exception No. 16 complains of the refusal of the court to charge the jury to the effect that if they believed that deceased came to his death by means other than that alleged in the indictment, and charged to have been committed by this appellant, or if they had reasonable doubt thereof, to acquit the appellant. The court, in its main charge, does require the jury to find that deceased came to his death by the means charged in the indictment and also charges the converse of this. This certainly ought to be sufficient.
Bill of exception No. 17 complains of the learned trial judge’s refusal to instruct the jury that if they believed from the evidence that the appellant , was in his north field at the time of the killing, working his cane, and in company with one Roy Callicut, and was not present at the time and place alleged in the indictment of the killing, to acquit him. The matters complained of in this bill are fully covered in appellant’s ninth special charge, which was given by the learned trial judge.
Bills of exception Nos. 28 and 29 complain of the action of the learned trial judge in permitting hypothetical questions to be propounded to the expert witnesses, because no facts were introduced which would form the basis for the hypothesis stated in the question. An examination of the statement of facts, and especially of the testimony of the accomplice witness William
Franks, reveals that a full and complete predicate was laid for such questions.
Bill of exception No. 30, as qualified by the judge, presents no error.
Bill of exception.No. 31 complains of the action of the learned trial judge in permitting the state to ask the witness Ida V. Sickles, self-confessed accomplice, over the objection of the appellant, the following question:
“At any time the officers were talking to you did they ever try to get you to tell anything but the truth?”
The bill does not show that the witness answered the question. We are therefore unable to appraise the error complained of. Nugent v. State, 273 S. W. 598.
Bill of exception No. 32 complains of the action of the learned trial judge in permitting the state to ask the accomplice witness William Franks whether appellant gave him and deceased anything on the 19th of January, being two days before the death of deceased, and that, over the objection of appellant, the witness was permitted to say that appellant gave them some whiskey, between a quart and a half-gallon, and that the whiskey “kinder made him sick,” and the witness did not drink much of it, and that the deceased only took a drink of it. This was objected to as being immaterial and prejudicial to the appellant. The bill does not set out the antecedent and surrounding circumstances sufficiently to enable us to appraise the bill and judge whether or not the evidence was immaterial. We are unable to judge whether or not there was any connection between the whiskey furnished by the appellant to said witness two days before the killing and the transaction involved, but certainly the bill does not negative this idea. Black v. State, 151 S. W. 1053; Rutherford v. State, 277 S. W. 669; Mann v. State, 277 S. W. 1085.
The evidence is sufficient to support the verdict. Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.