Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the State penitentiary for a term of twenty-five years.
We find no bill of exceptions in the record, and will consider appellant's grounds for new trial as contained in his motion for new trial. His first ground is: "That the verdict of the jury is contrary to the law and the evidence, the evidence being wholly insufficient to support the conviction, and is not of that conclusive nature as required by law in cases of circumstantial evidence, and fails to show to a moral certainty that the defendant committed the offense; and the evidence adduced was not incompatible with the innocence of defendant, and incapable of explanation upon any other reasonable hypothesis than that of guilt." A casual inspection of the record before us might lead to the conclusion contended for by appellant, but a closer study of the circumstances detailed by the witnesses constrains us to the converse opinion. We can not say the evidence is insufficient to support the verdict of the jury, but believe, taken as a whole, that the same is of that conclusive character that rivets conviction upon appellant.
The second ground of his motion is: "That the court misdirected the jury as to the law of the case, and failed to give the whole law applicable to the facts of the case: (1) Failed to charge on the law of self-defense; (2) failed to instruct the jury that they could not convict defendant on the uncorroborated testimony of Mat Hopkins, — her evidence, if true, showing her to be an accomplice." As to the first contention, we do not think it well taken. The evidence does not raise the issue of self-defense. As to the second contention, we must say that the evidence does not show that Mat Hopkins is an accomplice, nor does the evidence show that said witness was an accessory after the fact. The only evidence bearing upon this question is, in substance, as follows: S.A. Patterson, the justice of the peace, stated that the witness Mat Hopkins was sworn by him on the examining trial. "The *Page 265 day before the examining trial, Mat Hopkins' brother gave witness a note signed Mat. Hopkins. The note said: `Mr. Patterson: I want you to turn my brother loose. I know nothing about the case against the boys, so you can turn them out of jail.' The day of the examining trial Mat Hopkins was placed on the stand, and sworn as a witness. She would refuse to answer any questions asked her by the county attorney, and would refuse to say anything. I think she said one time, `I do not know anything about the case.' The county attorney would ask her about previous statements made by her, and she would not answer him, and began to cry. Defendant's lawyer told her to go and testify to all she knew, but she refused, and I sent her to jail for contempt." S.W. Harmon, one of the defendant's attorneys, testified that the witness Mat Hopkins testified on the examining trial that she knew nothing about the case. The record further discloses the fact that Mat Hopkins is a sister of one of the parties accused of the crime; there being three parties, including the appellant. We have heretofore held that mere concealment of the fact that a crime has been committed does not make a person an accomplice. In Smith v. State, 28 Texas Criminal Appeals, 309, in passing on this question, we said: "A person's mere knowledge of the commission of a crime, in the absence of proof implicating him therein, does not constitute such person an accomplice; and when he testifies as a witness his testimony will not demand of the trial court a charge upon the law of accomplice testimony." And we find the same idea expressed in Alford v. State, 31 Texas Criminal Reports, 299, in the following language: "Mrs. Davis was not shown by the testimony to be an accomplice. Neither the knowledge on her part that an offense was being committed, nor the mere concealment of such knowledge, constituted her an accomplice." For an able discussion of this question, see Schackey v. State, ante, p. 255. We think from the foregoing statement it is apparent that the witness Mat Hopkins is not an accessory after the fact, nor an accomplice as contended by appellant. 1 Bish. New Crim. Proc., sec. 1159.
His third exception is: "That the court failed to fully and correctly charge the law of murder in the second degree, and failed to charge the jury as follows: `That the instrument or means by which the homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed.'" Appellant, in this assignment, does not indicate how or wherein the charge is defective on murder in the second degree. From a careful inspection of the same we fail to discern any error in this respect in the charge. Nor do we think appellant has been injured by the failure of the court to charge as complained of by him. The evidence does not raise the issue.
The fourth ground of this motion is, the court failed to charge on *Page 266 the law of manslaughter. There is no evidence raising this issue, and therefore the court did not err in failing to charge on the same.
The fifth ground is, the court erred in failing to charge on all the means and weapons alleged in the indictment to have been used in the commission of the offense. Clearly, it would have been erroneous for the court to have charged on an instrument as a means of death which was not proved by the evidence; and we do not think the court erred in confining his charge to the evidence.
The sixth ground complains of the court's charge on circumstantial evidence. We can not agree with this contention. The charge is full and explicit.
The seventh ground complains of the court's ruling on the admissibility of testimony. There is no bill of exceptions reserved as to this matter, and it is merely stated in the motion; hence we are unable to say that it has injured the appellant in any way.
In his eighth ground he complains of the failure of the court to instruct the jury that they could not consider defendant's failure to testify as a fact against him. We have frequently held that it was not error for the court to fail to so charge, nor error for the court to so charge.
In his last ground he sets up the fact that material newly discovered evidence has been secured since the conviction. This part of the motion is sustained by the affidavit of the witness Joe Phillips, from whom the newly discovered testimony is proposed to be procured. We have examined the affidavit, and do not think that the same comes within the rule of newly discovered testimony. In the first place it is not material; second, it is not probably true; and, third, it is not calculated to have changed the result of this case. Finding no error in the record, the judgment is in all things affirmed.
Affirmed.