Appellant calls attention that he was insisting on the quashal of the indictment, not only on the ground that it bore no file mark, but also because the court's minutes failed to show its proper presentment, thereby failing to comply with Art. 394, C. C. P. The bill of exception complaining of the court's refusal to quash the indictment bears the following explanation from the trial judge:
"At a previous term of court the same motion was made to *Page 603 quash and it was ascertained from the testimony of the clerk that the indictment had been properly returned by the grand jury at that time and received by me in open court and delivered to him by me on December 9, 1924, but no file mark had been placed on it and had been in his possession since then all the time and defendant was served with a copy on December 11, 1924. The clerk also testified that the grand jury appeared with a quorum present and returned the indictment in open court through their foreman. All this proof was made upon the motion to quash the indictment and I directed the clerk to file the indictment as of the 9th of December, 1924, and directed the District Attorney at the time to prepare an order showing that the indictment had been presented, but this order was never prepared nor entered at that term. When the motion to quash was again presented the same proof was offered as at the previous term and I again overruled the motion and directed the prosecuting attorney to prepare the order, which was done, and the record at this time contains an order showing the presentment of the indictment at the previous term of court."
Upon a proper showing, even at a subsequent term of court, the record may be amended so as to show the presentment of the indictment. Burnett v. State, 14 Tex. 456; Rhodes v. State,29 Tex. 188; Denton v. State, 3 Tex.Crim. App. 635; Townsend v. State, 5 Tex.Crim. App. 574; Cox v. State, 7 Tex.Crim. App. 495; DeOlles v. State, 20 Tex.Crim. App. 145; Serrato v. State, 74 Tex.Crim. Rep., 171 S.W. 1133; Tyson v. State, 14 Tex.Crim. App. 388. While Loggins v. State, 8 Tex. Crim. 434, is not upon the exact point the observations of the court found therein are interesting. The record in the present case seems to have been amended in the manner indicated as proper by the foregoing authorities. We must accept the statement of the court in his explanation to the bill as correct and as showing that the evidence before him authorized his act, and must also presume the order entered effected the desired amendment. If the sufficiency of the evidence to authorize the act is questioned by appellant or the sufficiency of the amended record is challenged the burden is on appellant to bring the evidence and order before this court by proper bill before those questions could be reviewed.
Appellant renews his contention that the court committed error in not submitting to the jury his plea of former jeopardy. The plea shows upon its face that the former jury was discharged *Page 604 with appellant's consent, the only effort seeking to avoid the effect of such consent being an averment that appellant gave his consent without having an opportunity to discuss the matter with his counsel and without knowledge of the import or gravity of the agreement. We think the recital in the plea that appellant agreed to the discharge of the jury renders the plea insufficient on its face and authorized the court to decline to submit it to the jury.
Appellant insists with much earnestness that the failure of the court to permit him to prove by T. D. Rowell, a son of deceased, that he had employed one G. W. Roberts as a detective was such error as demands a reversal. As stated in the original opinion, appellant makes no contention that he desired this evidence as in any way affecting the testimony of the witness Rowell, but the bill expressly shows that he was insisting on it as affecting the testimony of Roberta Roberts, the wife of G. W. Roberts. The latter did not testify. Roberta did give damaging evidence against appellant. If the bill had shown that appellant expected to prove that compensation to her husband for his work in the case was based on the contingency of a conviction, and it appeared that the wife was aware of this fact, there would appear some merit in appellant's contention, but the bill does not so show. Roberta's evidence is to the effect that she married Roberts at the last term of court, long after the killing of deceased, and she testified if her husband was employed as a detective, or was in any other way interested in the prosecution she had no knowledge of it. With the record in this condition we do not feel authorized in holding that the ruling of the court in the matter complained of was such an error as calls for a reversal. The effect of the evidence expected depended on too much speculation and too many contingencies to justify such conclusion.
We have again examined the bill of exception complaining of the court's action in overruling appellant's application for continuance. The bill as originally prepared by appellant was qualified by the court. Objection having been made to the qualification the court very properly prepared a bill in lieu of the one presented to him. In the absence of a bystander's bill controverting the one prepared by the court we are controlled by the recitals in that bill. It appears therefrom that the application for continuance was appellant's second application, and that the testimony of some of the absent witnesses was supplied by others who were present and the proposed testimony of other absent *Page 605 witnesses became immaterial or cumulative in the development of the case.
Appellant renews other questions in his motion for rehearing. None of them has been overlooked. One relates to the admission in evidence of certain entries on the hospital records in Shreveport. This point had our most careful consideration on the original submission and nothing could be added to what was said in disposing of it in our former opinion. We think the question was there properly decided.
We have again, at the suggestion of appellant, re-examined the evidence. The case is one of conflicting testimony demanding the determination of the credit of witnesses and the weight to be given their testimony. This province is properly lodged with the jury. They have solved the conflicts in favor of the state. This court is in no position to overturn their judgment in the matter. We cannot say the jury was wrong in accepting as true incriminating evidence against appellant because it was denied or assailed by him. The evidence in the record, if true, justified the verdict.
We commend the attorneys who were appointed by the court to defend this unfortunate appellant for their zeal in his interest. Realizing their obligations to him under the court's appointment they have overlooked nothing which could be properly interposed in his behalf. We have been unable to agree with them in their contentions, and believing the case to have been properly disposed of in the affirmance of the judgment, the motion for rehearing is overruled.
Morrow, P. J., not sitting.
Overruled.