jurors were unable to give. The third count charges the murder of Mrs. Conditt by Felix Powell by striking her with an adz, and that appellant, before the commission of said murder by Felix Powell, did unlawfully and with malice aforethought command and encourage the said Felix Powell to do and commit said murder, and that he did then and there agree with said Felix Powell to aid him in committing said murder; he, the said Monk Gibson, not being personally present when said offense was committed by the said Felix Powell. The fourth count of the indictment is in all respects identical with the third, except that it is charged that Felix Powell committed the murder of Mrs. Conditt by striking and beating her with some blunt instrument, a better description of which the grand jurors were unable to give. The fifth count charges that Felix Powell murdered Mrs. Conditt by striking and beating her with an adz, and after the commission of said offense of murder by the said Felix Powell, and well knowing that said offense had been committed by the said Felix Powell, and with the purpose and in order that the said Felix Powell might evade arrest and trial for said offense so committed by him, did unlawfully and willfully conceal same and give aid to the said Felix Powell. The sixth count in the indictment is in all respects identical with the fifth, except it is averred that Felix Powell murdered Mrs. Conditt by striking and beating her with some blunt instrument, a better description of which the grand jurors are unable to give. 2. Appellant's motion for a new trial embraces 16 grounds upon which a new trial is sought. The first ground of the motion is that the verdict and judgment are contrary to the law and evidence. Our finding on the facts makes it unnecessary to further consider this ground.

3. The second ground of appellant's motion is as follows: "The court erred in overruling this defendant's motion for a change of venue and dismissal of said cause from the docket of the district court, for the reason that said defendant was first indicted in Jackson county, Tex., for the murder of Mrs. Lora Conditt, by a grand jury of said county, October 9, 1905, and on October 17, 1905, the district judge of said county of his own motion changed the venue of said cause from said county to Bexar county, Tex., and giving the following reasons for so doing: "The judge presiding at this court being of the opinion that, owing to the fact that this case has become exceedingly notorious and has, by reason of that fact, been widely and universally discussed by the people generally throughout this section of the county; and a large number of leading and influential citizens of Jackson and adjoining counties have, to a very large extent, interested themselves in working up the case in the effort to ascertain the true facts of the case and apprehend the party or parties,' etc.-it is the opinion of the

court therefore, in view of all these facts, that a speedy trial of this cause alike perfectly fair and impartial to the state and the defendant cannot be had in this county. Therefore the presiding judge of this court, who is also the presiding judge of the court hearing this motion, said Jackson county and De Witt County being in the same judicial district, now here, and of his own motion in open court, orders that the venue of this cause be, and the same is, changed to Bexar county, Tex." "Defendant says that the conditions above set out by said trial and presiding judge, being true at the time he made said order, are doubly true at this time, for the reason that said cause has become more notorious, more widely discussed in Jackson and De Witt and adjoining counties, and in fact in every county in this judicial district from the fact that this defendant was subsequently tried in Bexar county, Tex., and said case against him dismissed from the docket of said county, and from the further and additional fact that the codefendant, Felix Powell, has been subsequently tried, sentenced, and executed in Victoria county, the adjoining county to said De Witt county in the same judicial district, and the fact that this record will show that 120 special veniremen and additional talesmen in two lists to the number of 70 men were exhausted before a jury was finally secured to try said cause; the defendant having fully exhausted his challenges before the three last jurors were selected and sworn to try said cause; all of said facts and the whole record in this case showing that defendant should not have been tried in said De Witt county, Tex., and it evidently being the opinion of the presiding judge of this court, in the original transcript changing the venue of said cause to Bexar county, Tex., that the defendant could not secure a fair and impartial trial in his judicial district 'or throughout this section of the county.' Wherefore defendant says that his affidavit for a change of venue and his motion of a dismissal of this cause from the docket of the court in said De Witt county should have been granted. In this connection defendant would further remind the court, with all humility and respect, that the machinery of our courts is not instituted and established for the purpose of vengeance, but that justice may be done, and that simply because a jury of Bexar county, Tex., failed and refused to convict this defendant, is no reason in law or justice that said cause should have been removed to De Witt county, Tex., in order that the result attained in this present trial might be consummated and this defendant finally have his life taken from him at the tender age of 17 years to appease the will of any number or any class of citizens of this judicial district."

It appears from the record that, when the case was called for trial in the district court of De Witt county, appellant filed a motion

to dismiss the case, on the ground that the order or judgment of the district court of Jackson county did not show that the statute had been complied with in changing the venue, and this motion to dismiss being overruled by the court was duly excepted to. The record shows the judgment of Jackson county, and shows the presence of the defendant in court when the motion was granted, and also shows that he was at the time represented by counsel, that the defendant was duly arraigned and had pleaded not guilty, and that the venue was thereupon changed by the court to De Witt county. Article 621 of our Code of Criminal Procedure is as follows: "The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made." And it has been uniformly held in this state, without exception, that the ruling of the court in granting or refusing a change of venue will not be revised on appeal, unless the facts upon which the ruling is based are presented in a bill of exceptions prepared, signed, approved, and filed at the term of court at which such order was made, and, unless the bill of exceptions contains the evidence, the question will not be considered. See Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354; Kutch v. State, 32 Tex. Cr. R. 184, 22 S. W. 591; Smith v. State, 31 Tex. Cr. R. 14, 19 S. W. 252; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Pruitt v. State, 20 Tex. App. 129; Bowden v. State, 12 Tex. App. 246; Wright v. State, 40 Tex. Cr. R. 447, 50 S. W. 940. Likewise, exception must be taken and reserved in the court by which the change was ordered. Krebs v. State, 8 Tex. App. 1; Preston v. State, 4 Tex. App. 186; Ex parte Cox, 12 Tex. App. 665. This rule is not only statutory, but has been so often decided and enforced that it can no longer be said to be a debatable question in Texas. The jurisdiction of the new forum cannot be called into question by plea of jurisdiction, unless exceptions are saved to the action of the court changing the venue in the court granting such change, and in such new tribunal a party cannot attack the court from which the venue has been changed by a plea of jurisdiction. Bohannon v. State, 14 Tex. App. 271, and Rothschild v. State, 7 Tex. App. 519.

4. Again, complaint is made that the court erred in failing to change the venue, on application, from De Witt county. Application was made for a change of venue by appellant, which motion was sworn to by him, but was not supported by the assisting affidavit of two or more credible persons, nor was there any reason assigned why appellant did not procure assisting affidavits. Article 615 of the Code of Criminal Procedure, is as follows:

"A change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine: (1) That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. (2) That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial." In the first place, it has been held in this state that a defendant is entitled to only one change of venue. Rothschild v. State, 7 Tex. App. 519, and Webb v. State, 9 Tex. App. 490. But it is not necessary to place the decision of this question on that ground. It has been the uniform ruling of this court that, before a defendant is entitled to a change of venue, the provisions of the statute must be complied with. The application must be supported by affidavits of at least two credible persons, residents of the county where the prosecution is instituted. This requirement is not complied with by the supporting affidavit of the defendant himself and one other person. O'Neal v. State, 14 Tex. App. 582. It has even been held that, where there was filed an affidavit alleging the existence of so great a prejudice in the county against him as to prevent a fair trial, but that persons could not be induced to make affidavit of such prejudice, and defendant asked for process for certain persons, residents of the county, who, affiant believed, would testify to the existence of such prejudice, the application did not comply with the statute. Mitchell v. State, 43 Tex. 512; Wall v. State, 18 Tex. 683, 70 Am. Dec. 302. This question was fully considered in the case of Willis Macklin v. State (decided at the recent Dallas term) 109 S. W. 145, where we reached the same conclusion and made the same holding.

5. Again, it is insisted that there was error in the action of the court in refusing to sustain appellant's challenge to the talesman summoned by the sheriff when all the names of the special venire had been exhausted; counsel for appellant contending that the act of the Twenty-Ninth Legislature repeals the law that had previously existed authorizing the sheriff to summon talesmen, and that a jury could only be obtained through the act of a jury commission, and any act of the court ordering the sheriff to summon talesmen was not only illegal, but void. By an inspection of this act (see chapter 14, p. 17, Acts 29th Leg.) it will be seen that title 8, c. 2, of the Code of Criminal Procedure was amended by adding article 647. This amendment was intended to provide, and did provide, that no juryman drawn by the jury commission should be required to serve or be drawn on but one venire in a capital case: but this act does not either expressly or by

implication repeal article 648, which provides that: "Where there shall not be a sufficient number of those selected to make the number required for the special venire, the court shall order the sheriff to summon a sufficient number of good and intelligent citizens, who are qualified jurors in the county, to make the number rquired by the special venire." See Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; and Deon v. State, 37 Tex. Cr. R. 506, 40 S. W. 266. We cannot believe therefore that there was any error in this action and ruling of the court.

6. The charge of the court was not excepted to either at the time it was delivered, nor is same criticised or questioned in appellant's motion for a new trial. It was a clear definite, lucid, succinct statement of the law of the case, and is not attacked in any way by counsel for appellant. They requested, however, on the trial, a number of special charges, which we will now consider. The first special charge, is as follows: "You are instructed, at request of defendant, that the defendant is presumed to be innocent until his guilt is established by legal and competent testimony, beyond a reasonable doubt, and that this presumption of innocence follows the defendant through every step of the trial, and until his guilt shall be established by direct testimony or else may be inferred from facts found; but I instruct you that, before you can infer the guilt of this defendant, you must find that the facts found have been strictly proved by testimony of witnesses under whose observations they have actually and directly fallen, and the guilt of the accused should follow easily and naturally from the facts proved, and must be consistent with all the facts proved, and not inconsistent with any other reasonable hypothesis than that of the defendant's guilt. And I instruct you that, if you find the testimony in this case wanting in any of the above essentials, you will find the defendant not guilty." This charge, we think, should not have been given. It is argumentative, and on the weight of testimony. The court's charge covered and included everything that ought to have been given which was embraced in this charge. The court charged on circumstantial evidence in this language: "In this case the state relies for a conviction upon circumstantial evidence, and, in order to warrant a conviction upon such evidence, each fact necessary to establish the guilt of the accused must be proved by competent evidence, beyond a reasonable doubt, and the facts and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and producing in your minds a reasonable and moral certainty that the accused committed the offense." The court also instructed the jury as follows: "The defendant in a criminal case is presumed to be innocent until his

guilt is established by legal evidence, beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant's guilt you will acquit him, and say by your verdict, 'Not guilty.' In addition to this, on every different and varying phase of the case, the court in express terms submitted the doctrine of reasonable doubt. In view of the court's charge, the requested instruction, even if in all respects correct, need not have been given, since the court had already instructed the jury fully and thoroughly on the subject covered by the special charges.

7. Appellant's counsel also requested the following special instruction: "When the admissions or confessions of a party are introduced in evidence by the state, then the whole of such admissions and confessions are to be taken together, and the state is bound by them, unless they are shown by the evidence to be untrue. Such admissions or confessions are to be taken in consideration by the jury as evidence in connection with all of the other facts and circumstances of this case." In this state, where the confessions and admissions of a defendant constitute the principal incriminative evidence against him, it is not only proper, but sometimes may be required, that the court should instruct the jury that the burden rests upon the state to show that such admissions or confessions were untrue. Such a charge was approved in the case of Pharr v. State, 7 Tex. App. 472, and in the case of Combs v. State, (Tex. Cr. App.) 108 S. W. 649, it was held that such a charge, substantially, should have been given. In both those cases, however, the admissions and confessions offered in evidence were as to the fact of the homicide, which was in terms admitted. In this case there was no admission or statement admitting the killing, but seeking to justify and excuse same. Many declarations were offered in evidence, but these were statements of collateral and incidental facts shown to be untrue, and offered in evidence by the state as tending to show the account given by appellant was untrue, known by him to be untrue, and therefore incriminating evidence against him, in that they show an effort and scheme to shield himself from the force and effect of his presence at the scene of the homicide, and other facts tending strongly to connect him with the murder. We do not believe therefore that such a charge was either required, or that it would have been proper to have given same.

8. The following special charge was also requested: "You are further instructed, at the request of defendant, that you will not consider any evidence in the case tending to show the guilt of Felix Powell in the murder of Mrs. Lora Conditt as evidence against the defendant, Monk Gibson, in this case, but can only consider said evidence to establish the guilt of said Felix Powell as a principal as a basis upon which the state seeks to establish the guilt of the said Monk Gib

son, and no further." This charge, in substance, stated the law correctly, and was included in the general charge of the court. On this question the court instructed the jury as follows: "You are instructed that yu will not consider any evidence in this cause of any statement or declarations of Felix Powell, if any, for any purpose except in considering whether said Felix Powell was guilty of the offense of murder of Lora Conditt as charged in the indictment, and you will not consider any such testimony, if any, in any manner affecting this defendant upon the trial of murder against him in this cause, either as a principal or as an accessory." This charge of the court was all that was required to be given, and was, indeed, but a paraphrase of the special charge requested by counsel for appellant.

9. There are a number of other special charges requested, but none of them, we think, should have been given. They have been carefully considered by us, but are of such character as do not call for discussion.

10. The serious question in the case is the action of the court in admitting the testimony of several witnesses as to statements and disclosures made by Felix Powell to them after the killing of the Conditt family. These matters are properly embraced and included in appellant's bills of exceptions Nos. 7, 8, 9, and 10. In these declarations, made to many witnesses, Felix Powell said, in substance, that he and Monk Gibson had killed the Conditt family, and in some of them gave some of the details of the murder. This testimony was objected to on the ground that same was hearsay, and made in the absence of appellant; that it was not admissible on the theory or ground of a conspiracy, for the reason that such statements or admissions were made after the murder, and therefore after the termination of the conspiracy. So that we are confronted with the proposition as to whether the declarations of the principal, or the confessions of the principal, are admissible against an accessory after the commission of the crime, where such confession embodies language that implicates the accessory; or whether this testimony will of necessity be treated as hearsay, and therefore inadmissible. It will be remembered that the indictment charged murder direct against Felix Powell and appellant, and also included counts charging appellant as being guilty as an accessory. It will be conceded that, if appellant stood alone upon trial for murder, this testimony would not be admissible. It was not, however, offered to prove defendant guilty of murder, and the court expressly charged the jury both by verbal statement at the time same was admitted, as well as in his written charge to them, that it could not and must not be considered or used for that purpose. So that, the question recurs: Was it admissible against the defendant where he was charged as an accessory?

110 S.W.-4

It has been repeatedly held by this court that, in the trial of a party indicted as an accomplice or as an accessory, the state must prove the guilt of the principal beyond a reasonable doubt, and that in such case the court must charge the jury that such testimony is offered for that purpose, and in the trial of the accomplice or accessory any proof which would be admissible and legitimate in the trial of the principal would also be legitimate and admissible in the trial of the accessory for the purpose of establishing the guilt of such principal. This precise question was before this court in the case of Simms v. State, 10 Tex. App. 159, where the whole question was thoroughly considered and elaborately discussed by Judge White. That case, as reported, shows it was well briefed by learned counsel, and bears intrinsic evidence of careful and painstaking study. There were two counts in the indictment; one charging the defendant with the crime of murder, and the other charging that the crime was committed by one Plummer, but that before its commission he was incited, hired, encouraged, advised, and aided in its execution by Simms, the defendant. In the first count he was charged as a principal offender, and in the second as an accomplice to the murder. There was in that case a motion to require the state to elect on which count the prosecution would rely. In this state of the case, Judge White says: "Under the count charging the defendant as a principal, whether alone or in connection with others, the prosecution might have shown and have established not only the existence and actual perpetration of the deed in connection with other parties, but, having once established such conspiracy, would have been entitled, as against the co-conspirator on trial, to prove any act, declaration, or admission of the confederate or confederates not on trial, done and said in pursuance of the common design and in furtherance of it up to the time of its commission, but no further." Such rules, he says, however, do not obtain, "where an accomplice is being tried separately from his principal. Accomplices, under our Code, would in most of the states and at common law be denominated accessories before the fact, and, save in cases specially excepted, the rules applicable elsewhere to the latter with us apply to the former. McKeen v. State, 7 Tex. App. 631; Arnold v. State, 9 Tex. App. 435. Where a party is being tried as an accessory before the fact, or as an accomplice, it is essential as a predicate for, or condition precedent to, his guilt, that the state should establish the guilt of the principal, for his guilt is dependent on that of the principal, whether the latter is on trial or not. Whart. Crim. Ev. § 602; Arnold v. State, supra. But in thus establishing the guilt of the principal on the trial of the accomplice, the prosecution, when the confederacy between the two has been shown, is not limited to what was said and done

by the principal before the consummation of the act; but, in addition thereto, the acts and conduct of the principal immediately following the commission of the deed, and tending to show he committed it, are competent evidence to prove the guilt of the principal. Whart. Crim. Ev. 702; State v. Lewis, 45 Iowa, 20." Proceeding further, he says: "And so also with subsequent confessions made by the principal. We are aware that a contrary rule was formerly held. Mr. Russell, in his celebrated work on Crimes, says: 'Upon an indictment against an accessory, a confession by the principal is not admissible to prove the guilt of the principal. It must be proved aliunde.' 1 Russ. on Crimes (9th Ed.) side page 76. This doctrine is based upon the leading cases of Rex v. Turner, 1 Moo. Cr. Cas. 374. In the well-considered case of U. S. v. Hartwell, 3 Cliff. (U. S.) 221, Fed. Cas. No. 15,318, Judge Clifford, in discussing Turner's Case, says: 'If viewed as deciding that the confessions of a principal in a case where the principal and accessory are indicted and tried together are not admissible to prove the guilt of the principal, it is clearly opposed to the general course of decisions in criminal cases for centuries, and it is difficult to see why any different rule should prevail where the principal is first convicted, provided they are both joined in the same indictment. Many cases arise where criminal justice cannot be administered if the rule is as supposed by defendants. Take, for example, the case of an accessory in murder, where the principal is not upon trial because he pleaded guilty in the presence of the court and jury. Conviction of the accessory cannot take place without first proving the guilt of the principal, and his guilt cannot be shown without proving he committed the homicide with malice aforethought. Such evidence is clearly admissible against the principal when he is on trial, and, if it is not admissible in the trial of the accessory to confirm the prima facie presumption resulting from the record of the principal's conviction in a case like the present, then there can be no such confirmation-which cannot be admitted. "Our statute provides: 'An accomplice may be arrested, tried and punished before the conviction of the principal offender, and the acquittal of the principal shall not bar a prosecution against the accomplice, but on the trial of an accomplice the exidence must be such as would have convicted the principal.' Pen. Code, art. 89. In Arnold's Case it was said, in discussing a similar question: 'It being then necessary for the state to show the guilt of the principals, all legal evidence of whatever character is admissible. There fore motives, threats, and confessions of the principals, and in fact evidence from every legal source, is competent.' 9 Tex. App. 435. Another rule of law equally well settled, and which should not be overlooked in this

connection, is that 'deliberate confessions of guilt are among the most effectual proofs in the law, and that rule is applicable to the party who made the confession as well when he is tried with others as when he is tried alone.' 1 Greenl. Ev. §§ 215, 233; Ros. Crim. Ev. 37, 52." Further discussing the question, Judge White says: "It was also error to permit the confessions and declarations of Plummer, made after his arrest, to Sq. Gregory and others, to be introduced against this defendant under the first count; and, if admitted under the second count, the jury should have been expressly charged that they would consider them only with reference to Plummer's guilt, and not as evidence of the guilt of defendant, except as far as his guilt was dependent upon the establishment in the first instance of Plummer's guilt. charge nowhere limits the evidence to this object, and to that extent the charge failed to apply the law to the facts under the second count, and was insufficient."

The

The action of the court in this case followed absolutely the rule and doctrine laid down in the Simms Case. In the first place, as the record shows, when the state announced that it then proposed to offer evidence tending to show the guilt of Felix Powell as a principal, the court stated to the jury that this testimony would be considered by them solely and only for the purpose of establishing the guilt of Felix Powell, and not as evidence of the guilt of appellant. This was followed up by exactly the charge approved and suggested in the Simms Case. The rule and doctrine in the Simms Case seems to have been applied with rare intelligence in this case, and the action of the court in every respect conforms to the law as laid down in the case discussed. This same question was considered by the court and discussed at some length in the case of Crook v. State, 27 Tex. App. 198, 11 S. W. 444. That case is one of the most famous and well-considered cases in the books. There certain evidence of admissions and declarations of an alleged principal was offered in evidence against the appellant, and in discussing the matter the court say: "In a prosecution against a defendant charged as an accomplice, it is essential for the state to establish the guilt of the principal of the crime charged to have been committed by him. In this case it was essential for the state to establish the guilt of John Middleton, the alleged principal, of the murder of James H. Black. Without proof of Middleton's guilt as principal, the defendant could not be convicted as an accomplice. In establishing the guilt of Middleton, any evidence which would have been competent, had he been on trial, was competent on. the trial of the defendant as an accomplice, not for the purpose of proving that defendant was an accomplice, but for the purpose solely of proving that Middleton committed the murder, and the degree of the murder. Pen.