PRENDERGAST, Judge.
In August, 1907, the grand jury of Shelby County, duly indicted appellant for the murder of Jas. M. Truitt, alleged to have occurred on or about July 20, 1886. It seems he was first tried in September, 1907, and then in March, 1908, in the District Court of said county, both trials resulting in a hung jury. Thereafter the venue of the case was properly changed from Shelby to Cherokee County where a trial again occurred in December, 1910, when he was convicted of murder in the first degree and given a life term in the penitentiary.
The statement of facts is very lengthy. Hone of the questions raised make it necessary to give anything like a detailed statement of facts. They can be understood without it. However, the record shows that in 1874, the appellant, who was then a young man some twenty to twenty-two years of age, lived with his father and other relatives in Erath County, Texas, near the Hood County line, and that during that year his father, himself, his brother-in-law, another brother and others were duly jointly indicted by the grand jury of Hood County for the murder of Isaac Truitt and Samuel Truitt, and the wounding of Jas. Truitt, charged to have been committed in March, 1874; that in the latter part of that year his father was tried, convicted of murder in the first degree and the death penalty found against him and that in obedience thereto, later he was hanged; that after his father’s conviction and before he was hanged, the guards around the jail where he was confined, killed another brother of appellant with whom there was someone else at the time at night; that the killing of his brother on this occasion by the guards was because his brother, and whoever else was with him at the time, were supposed to be either attempting to rescue his father from jail or convey to him a poison so that he could commit suicide and avoid being executed; that immediately after the killing of the Truitts the appellant and others fled and continued fugi
tives until 1907, when appellant was arrested, brought hack to Hood County, tried for the murder of said Truitts in 1874, on said old joint indictment and acquitted. It was also shown that Jas. M. Truitt, who was killed in 1886, in Slielhy County, was the same James Truitt who was wounded at the time Isaac and Samuel Truitt were killed in 1874; that he attended, the trial of appellant’s father when his father was convicted, testified in that case and was the only living witness to the killing of said Isaac and Samuel Truitt and the wounding of himself on that occasion.
One of the most material questions on the trial of appellant, at which he was convicted and from which this appeal ivas had, was whether he was the person who killed Jas. M. Truitt, in Shelby County in 1886.
Appellant objected to the introduction in evidence of the certified copies of the said indictment, judgment of conviction and sentence of his father for the murder of Isaac and Samuel Truitt in 1874. To the indictment on the grounds: 1. That the indictment was hearsay as to him; that it was not shown at the time they were offered in evidence that he knew anything about the existence of it. 2. That the indictment offered is a substituted copy and there is no evidence that he knew that it was such an indictment or that any notice to substitute same ivas ever served uppn him. 3. That it was wholly immaterial to any issue before the jury in this cause and calculated to and will prejudice his rights before the jury and create in their minds great prejudice if such substituted indictment he permitted to go before the jury as evidence. To the judgment of conviction and sentence his objections were substantially the same as the first and third to the indictment.
It is always permissible in a ease of this kind for the State to prove any pertinent fact showing motive or intent; knowledge or notice to him of the indictments can be shown by circumstantial evidence as well as by direct proof. The evidence in this case, without doubt, if not by direct proof, circumstantially, showed that the appellant had knowledge of all these matters at and about the time they were occurring. The court did not err in admitting these instruments objected to, on any of the grounds stated by appellant.
Appellant objected to the testimony of Landers offered by the State to the effect that he was present when appellant’s father and others were tried in Hood County for the killing of the Truitts in 1874; that the jury convicted his father of murder in the first degree and assessed the death penalty; that he was present and saw appellant’s father hanged under that conviction; that Jas. M. Truitt, for 'the murder of whom appellant was convicted in this case, testified as a witness for the State against his father on the said trial of his father and that said Jas. M. Truitt was the only eyewitness to the killing of the said Truitts in Hood County; that he was one of the guards at the jail during the time appellant’s father was confined therein awaiting execution and that One of appellant’s brothers wag killed by the jailer or some of the
guards while” attempting to approach the jail while his father was confined therein under the death sentence; that the brother that was killed was crawling up to the jail and had a bottle of laudanum on him at the time he was killed. The appellant objected to this testimony because it was hearsay and was getting in evidence before the jury an ex parte proceeding to ivhich he was not a party and it was not shown that he was present at said trial or confined in. jail or knew that his father was hanged, or that his brother was killed while approaching the jail with poison for his father, and because said testimony was wholly immaterial and calculated to and did prejudice the rights of the defendant before the jury in this cause and created in their minds great prejudice against him.
Appellant made the same objections to substantially the sanie testimony of Peters, another witness for the State, as was made to the testimony of Landers.
He made substantially the same objections to the testimony of another State’s witness Goodlett, who testified that he was one of the jurors who tried and convicted his said father and that the jury assessed the death penalty and that his father was hanged thereunder.
In our opinion the testimony of each of these witnesses was admissible for the purpose of proving motive and a cause for the killing of Jas. M. Truitt in 1886 by appellant and that it was pertinent and proper testimony as t'o him.
It was clearly shown that Mrs. Julia Truitt (Bishop), who was the wife of the deceased, Jas. M. Truitt, at the time he was killed in 1886, testified before the court and jury on trial of the appellant under the indictment in this case in March, 1908; that the appellant was, of course, present at that trial, heard her testimony, had the opportunity to and cross-examined her fully at the time. The State proved by the court stenographer that he took down in full her testimony on that trial. After properly identifying her testimony on that former trial by the stenographer, the State offered it in evidence on this trial. Thereupon, the appellant, desiring to make objections thereto, asked, and the State consented, and thereupon the court retired the jury from the preliminary hearing of the evidence to account for the absence and nonresidence of said witness. After the jury was retired, before the court, the testimony was introduced and clearly showed that this witness was then and had for many years prior thereto been a nonresident of the State of Texas, having removed from said State and the place where her husband was killed many years prior to this trial; that at the instance of the State, after the appellant was indicted in this case, she attended the court at which he was tried, or to be tried several times. That the State tried to get her to attend this trial as well as other terms of court when the case was supposed to be tried, but that at some of the times and especially at this time she informed the distrist attorney by letters dated and marked at Birmingham, Alabama, just ten days before this trial that she could not attend this trial
under any circumstances; that she was then quarantined, nursing her only daughter who had scarlet fever. The testimony on this point which was addressed to and passed upon by the court, which was proper, clearly showed that she was a nonresident of the State, as stated above, was'out of the State, as stated above, and just ten days before the trial wrote to the prosecuting officer, as stated above, and clearly, we think, showed that she was not only a nonresident of the State and resided out of it, but that she was then out of the State at Birmingham, Alabama, and was not in Texas, at all, during the trial.
The appellant objected to the introduction of her testimony, first, because no proper predicate was-laid for its introduction; second, it is not shown that such testimony was taken before the District Court upon a former trial as provided by law; third, because the defendant had the constitutional right to be confronted by the witnesses against him upon this trial.
As stated above, there was ample evidence to justify the court in holding as he did that the proper predicates were laid for the introduction of this testimony and that the facts clearly met the first and second objections above stated. As to the third, this court has held adversely to the appellant in an exhaustive opinion by Judge Harper for this court in the case of Robertson v. State, 63 Texas Crim. Rep., 216, 142 S. W., 533.
Appellant has several bills of exceptions to the testimony of the State’s witness Spradley, who was sheriff of ¡Nacogdoches County at the time the deceased was killed in this case. The testimony of this witness objected to was to the effect that two days after the killing he got from Mrs. Truitt (Bishop) a description of the man she said shot and killed her husband. She was present at the time of the killing, saw it and saw the man who did it. Also as .to his testimony of his trailing the horse the slayer rode from the place of - the killing just after the killing and the fact that while trailing him he made inquiries of various persons along the route where he was trailing this horse. He identified the tracks of the horse from time to time for a distance' of a good many miles from Timpson, in Shelby County where the killing occurred, in a westerly direction until after the horse crossed the Trinity River many miles from the place of the killing. The court in no instance permitted the witness to state what the parties of whom he made inquiries told him. These bills are quite lengthy but it is unnecessary to give them in full. It is clearly shown that from about noon the day the deceased was killed until an hour or two after the killing of that night that the party who did the killing was seen and clearly identified, riding a horse of a certain description, going from west towards the east, where deceased lived and that he stopped parties, or a party and inquired the way to Timpson, the little town where the deceased lived and where he was killed. That about noon that day at a village he stopped and had the front feet of his horse shod. He left there going in the direction of Timpson, was met and identified
by several persons going in that direction after he had his horse shod; that he reached Timpson shortly before, or just about sundown; that the killing occurred just after dark that night in the deceased’s residence; that this same party hitched his horse in a thicket some seventy-five yards from the house so that he could be at least partially' concealed, went to the house where the deceased was sitting with his wife" and child back in the room from the door where the slayer entered. That he stepped up into the door, partially crouched and went on tiptoe or walked from the door several steps to where the deceased was, drew and fired a large pistol striking the'deceased in the head, the ball passing entirely through the head, from which the deceased almost instantly expired; that Sirs. Truitt, the wife of the deceased, saw all .of this and partially observed it, not knowing at the time that the slayer intended to kill her husband and not realizing it until he got right at the deceased, drew his pistol and fired; that the shot or commotion, in some way, put out the light. The slayer deliberately retraced his steps, went back to and got on his horse and" was seen to pass through the little town in a lope going back west in the direction whence he came and whence those persons had seen him that evening. At least" two witnesses testified positively to seeing the same man on the same horse return from Timpson going west" the night after the killing and a suffi-. cient time for him to have reached where they saw him after the killing. Sheriff Spradley and other witnesses are shown to have tracked this horse from the place where he was hitched, when the killing was ■done, back west for a considerable distance—many miles—as shown above. It was also clearly shown that the appellant at that time had a brother, Dan Mitchell, who lived in Erath County and it appears had lived there continuously from the time of the killing of the Truitts in 1874, at least until the killing of the deceased in this case. That the* appellant was- a fugitive from justice from 1874 until arrested in 1907,- on the old charge against him in Hood -County, and that during that time he was in Southwestern Texas and repeatedly seen therein. That he, from time to time during this time, went under different names. ■ Appellant also laid the predicate and introduced the testimony of some witnesses to contradict Mrs. Truitt (Bishop) in her testimony, among other things, of the description she had given of the slayer shortly after the killing.
While .there was positive testimony by witnesses identifying the appellant as the person who fired the shot that killed the deceased in this case, there is a great deal of circumstantial evidence which was clearly admissible for the purpose of and tending to show that appellant was the slayer. In our opinion the testimony objected to by the appellant of the witness Spradley, as shown by the record and as qualified by the judge in allowing the bills, was admissible and the court did not err in admitting it.
There is in the record what is claimed to be appellant’s bill of exceptions Ho, 8b, undertaking to object to the testimony of said Sprad
ley to the effect that he" arrested, soon after the killing, Dan Mitchell, a brother of appellant, and took him to Nacogdoches, placing him in jail there and that after getting certain information, he then went to Kinney County, where appellant lived, looking for him. The court expressly refused to allow the bill, as this evidence was claimed to be presented therein, but allowed it as the evidence was presented by the statement of facts, referring to the page. As the matter is presented and qualified by the court, there was no error shown by this bill.
By another bill appellant objected to the testimony of said Spradley of the description given to him by Mrs. Truitt (Bishop) of the slayer some ten days after the killing. As stated above, the appellant had introduced witnesses showing contradictory statements made by Mrs. Truitt (Bishop) in her description of the slayer. When such is the case it is always competent for the party whose witness is thus attacked to sustain the witness by showing that he had made statements similar to those testified to by him, to other parties about the time. For a collation of some of the authorities on this point see
2
Buckler’s Criminal Digest, p. 1741, section 573, and White’s Code Criminal Procedure, section 119, subdivision 4, page 729.
By another bill of exceptions appellant complains of this language, which, he says, was used by the district attorney, Hon. W. B. O’Quinn, in his opening speech for the State: “She (meaning the wife of the deceased) knows better than any other person in the world, except the defendant, that he, the defendant, was the man who killed her husband.” This was objected to because it was claimed it was a direct reference to the failure of the defendant to testify in his own behalf on the trial. The court, in allowing this bill, qualified it, stating that if his attention was called to the remarks which he did not recollect, it was done privately and the jury heard nothing of it. The bill does not state any of the proceedings in the case so as to show whether or not this remark was justified and it does not show that the defendant did not testify on the trial. We think it would be a strained construction of this single remark, as quoted, to be any reference to the appellant’s failure to testify, if he did, and as the matter is presented it does not show any reversible error. The appellant requested no charge to the jury that they "should not consider it. Combs v. State, 55 Texas Crim. Rep., 332; Knight v. State, recently decided, but not yet reported; Vann v. State, 48 Texas Crim. Rep., 11; Wright v. State, 37 Texas Crim. Rep., 146; Arnold v. State, 38 Texas Crim. Rep., 5.
Two other complaints by appellant are to the failure of the court to charge the jury the object of the introduction of the old indictment of appellant and his father in Hood County, and the judgment of conviction and sentence of appellant’s father, and that if admissible at all, they were only admissible to show motive on the part of appellant and claiming the jury were left without any direction to consider them for that purpose only. The appellant introduced a certified copy
of acquittal of him under the said old indictment against him and his father in Hood County. This testimony could not have been used by the jury for any other purpose. It was unnecessary for the court to charge limiting that testimony. No special charge was requested by appellant on the subject. Harrelson v. State, 60 Texas Crim. Rep., 534, and cases there cited.
Heither did the court err in not charging limiting The testimony of Landers, Peters and Goodlett, hereinabove stated, for the same reasons.
An'other complaint is that the court erred in failing to charge the jury that if they believed from the evidence that Hit Graves killed the deceased, and that the court erred in failing to charge the jury that if they believed any other person than the defendant killed the deceased, or they had a reasonable doubt of it, they would acquit him. The appellant, as the court, in allowing this bill states, requested no charge on any of these matters and made no exceptions during the trial. The court in the charge given required the jury to believe beyond a reasonable doubt that the appellant killed the deceased, and charged also, reasonable doubt and told them that if they had a reasonable doubt of the guilt of the defendant to acquit him. The court also gave a correct charge on alibi to which there is no complaint. In our opinion, there is not sufficient evidence in the record to have justified the court to have submitted to the jury whether or not Mit Graves killed the deceased. In view of the charge given by the court, shown above, the court did not commit reversible error in not charging, as complained bv appellant, on this ground. See Code Criminal Procedure, article 723.
By another bill appellant objected to certain testimony by the State’s witness John T. Garrison. The bill, as qualified by the court, shows substantially this state-of facts: This witness testified that he was in the little town of Timpson at the time of the killing of the deceased and heard it very soon after it occurred; that he at once went to the house of the deceased; that in going from where he was when he heard it to the deceased’s house he saw what was evidently the slayer riding in a lope across the town not' in the streets, bnt away from and from the direction of where the killing had occurred. That in going to the house he met parties who gave a description of the slayer and that upon going to the house he saw the deceased’s wife, talked with her, and his testimony shows, with reasonable certainty, that he then and there got from her a description of the slayer. This occurred very shortly 'after the killing and from his testimony, it occurred within twenty or thirty minutes from the time of the killing. As stated above, the defendant introduced witnesses who testified that they heard the wife of the deceased describe the slayer, whether at this identical time and to this identical witness Garrison or not, is not made clear, but it all occurred about the same time very soon after the killing. Their testimony was introduced to contradict Mrs. Truitt in the description
of the appellant which she gave at the time of the killing, they testifying she gave a description different from what she testified on the stand when she testified in the, trial of this ease. This witness Garrison is also shown by his own and other testimony to have, very soon after the killing, and on the same night, tracked the horse the slayer rode away from the killing for several miles during that night, and also an additional distance the next day. Under these circumstances the court permitted this witness, at the instance of the State, to testify to the description of this man as he got it that night and that that was the description of the man he was tracking away from the scene of the killing. The court admitted the testimony on the basis that the whole of the witness’ testimony showed that he got that description from the wife of the deceased that night very soon after the killing occurred and that the man that he described as the one whom he was tracking away from there, in effect, suited that description. The court at first, when the objections were made, declined to let the witness Garrison so testify, but when the State reintroduced him and there was elicited from the witness further and additional testimony on the subject, the court then permitted him to testify as stated. The appellant objected thereto on the ground that it was hearsay, inadmissible and prejudicial to the appellant’s rights in that it was getting before the jury the ideas and conclusions of other persons than the witness as to the man who killed the deceased. As the matter appears in the record, ho reversible error was shown by permitting this testimony.
Another objection is that the court did not charge on murder in the second degree. If appellant was the slayer, the evidence presented nothing but murder in the first degree. Ño special charge presenting murder in the second degree was requested, and none should have been given.
Ueither did the court err in not charging on circumstantial evidence. Ho charge was asked by the appellant on that subject. There was positive evidence by Mrs. Truitt, the wife of the deceased, positively identifying the defendant as the slayer. There was further evidence and strong corroborating circumstances by other witnesses tending to show that he was the slayer. It is only necessary to give a charge on circumstantial evidence when there is no testimony other than circumstantial evidence to show the guilt of the appellant.
The only other bill. of exceptions by appellant states that the Sftate in this case was represented by Hon. W. B. O’Quinn, the district attorney ; that hé was an able, vigorous and fearless prosecutor and conducted this prosecution with great skill and ability, “but notwithstanding this fact the judge who tried this cause questioned the witnesses as is shown by the statement of facts filed herein, as follows: On page 7 he asked one question; on page 8 two questions; on page 10 two questions; on page 15 one question; on page 41 one question; on page
42
four questions; on page 43 three; on page 44 one; on page 47 one; on page 51 two; on page 53 one; on page 55 two; on page
57 two; on page 58 two; on page 59 one; on page 61 two; on page 68 two; on page 69 one; on page 70 two; on page 71 two; on page 72 one; on page 73 one; on page 75 one; on page 80 one; on page 81 three; on page 124 three; making a total of forty-four times the court asked the witness in this cause questions.” The bill then proceeds to state that in paragraph 21 of the motion for a new trial, appellant assigned the action of the court in making these frequent and repeated interrogations of the witness as error and states, “and he here excepts to said frequent and repeated interrogation of the witnesses during the taking of the testimony in said trial, because the court thereby manifested an undue interest therein in behalf of the State to the prejudice of this defendant. That the effect of the court’s repeated interrogation of the witnesses was to impress the jury with the idea that the court thought the defendant was guilty and ought to be convicted.” And claims that the action of the court was to the prejudice of the appellant and deprived him of a fair and impartial trial. The court, in allowing the bill, did so with this statement, or qualification: “I approve and allow this bill, and in doing so I respectfully and earnestly request the court to give its subject matter cáreful scrutiny and to give clear expression of its views as to the merits of defendant’s criticisms of my action in this regard; upon examination I think it will be found that my questions had for their object a definite and clear understanding of the witness or to make his statement intelligible and no other, and that they nowhere suggest any bias or leaning in the case. I am familiar with the rule and with the just strictness with which the courts of last resort insist upon its observance that the trial judge shall not make himself a partisan, but on the other hand, now and during all the many years I have occupied the district bench I have regarded it as equally my duty to give intelligent direction to all stages of a trial, and to ask witnesses such questions, as in this case, I deemed necessary to an economy of time and to make clear and certain the meaning of the witness.”
It is a sufficient and complete answer to this bill to state that neither in this bill, nor anywhere else in the record is it shown that the appellant objected at the time the questions were asked by the court to any or either, or all of them and took no bill of exceptions thereto at the time. Doubtless, if this had been done at the time, the court would have desisted from asking any question, and "if necessary would have taken steps at the time to correct any wrong impression on the jury if any wrong impression was made. Such matters can be presented to us for revision only-when excepted to at the time, and bills of exceptions taken thereto. They can not be presented for a revision by a mere motion for a new trial and a bill of exceptions showing that they were only called attention to by a motion for a new trial, as is shown in this instance. However, the learned judge who tried this case in the qualification to the bill,
we think, shows that no special injury as claiméd by appellant, occurred to him that would justify or authorize this court in any event to reverse this case.
A proper interpretation of our statutes makes it clear, we think, as well as many decisions of this court on the subject that the court should refrain from asking questions of the witnesses. This should be left to the attorneys representing the respective sides. We know how hard it is for the court to refrain from doing this in many instances, but he is, and should be, and we have no doubt in this case the learned judge was, wholly disinterested, and not the representative of either side. We believe it is always safest, unless an extraordinary occasion should ¿rise, or it became necessary, for the presiding judge to make an intelligent ruling, when the evidence is being detailed before the jury, for the judge to ask no questions. This is the safer rule and should be observed by the trial judges.
.The only other question raised is as to the sufficiency of the evidence to show that the appellant was the person who killed the deceased. The record show's that this is probably the 'fourth, at least the third, trial of this case, the prior trials resulting in hung juries. The testimony from the State’s side, taken as a whole, is sufficient to sustain the verdict. .There is nothing in the record to show any bias or prejudice either for or against the appellant by the jury as a whole, or any one of the jurors. The learned trial judge has heard the whole testimony on all the trials. The appellant was positively identified by Mrs. Truitt (Bishop) as the slayer. There is testimony in the record strongly corroborating her. It is true she was contradicted in some particulars by several witnesses. But all that was for the jury. The motive of the appellant for the killing is unquestionably shown. The court charged the jury on alibi, and in addition to the general charge on the presumption of innocence of the appellant, he charged unless the jury believe his guilt is established by the evidence, beyond a reasonable doubt, they would acquit him, and in addition that if the evidence raised in their mind a reasonable doubt as to the presence of the appellant at the place where deceased was killed at the time of the killing, that they should acquit him. The law, as we believe, has wisely left such matters to a jury of twelve disinterested, unprejudiced, competent men who hear all the testimony, all of the argument of the attorneys and the charge of the court, and has made them the exclusive judges of the credibility of the witnesses and the weight to be -given to their testimony and has not delegated any such power or authority to this court. We have carefully read and studied all of the testimony in this case and under our duty, as we see it, we can not do otherwise than- affirm this judgment.
Affirmed.