This conviction was for murder, the death penalty being assessed. There are no bills of exception in the record. All errors urged and complaints made of matters occurring on the trial are found in the motion for new trial. The second, third, fourth and fifth grounds of the motion insist that the court erred in its ruling admitting testimony. These questions can not be considered because exception was not reserved, and the matters are not verified as required by our procedure in order to authorize revision.
There are other grounds set up in the motion for new trial pertaining to alleged newly discovered testimony. It was undertaken to perpetuate these questions in a statement of facts, showing the evidence introduced on motion for new trial with reference to such newly discovered testimony. Under the decisions this can not be considered because it was filed long after the adjournment of the term of court — eighty odd days in fact. The rule has been adhered to in this court that evidence introduced in regard to matters set up in motion for new trial must be filed during the term of court. Under this rule the statement of facts in regard to these matters can not be considered.
It is contended also in motion for new trial that the witness Mary *Page 352 Lott was an accomplice. We can not agree with counsel in this matter as this record presents that phase of the case. The witness Tolbert turned State's evidence under an agreement with the county attorney. He testified to a conspiracy followed by a cruel homicide for the purpose of robbery, and that he, appellant, with Jim Banks, alias Dirty Red, consummated that agreement by killing deceased and getting his money to the amount of two hundred dollars in currency. We deem it unnecessary to go into a detailed statement of this evidence; it is voluminous. The witness did detail it with minute circumstantiality. He was examined and cross-examined at great length, and described how they discovered the man with the money in the City of Dallas, drank with and induced deceased to treat the three; they followed him to Oak Cliff, where he had informed them he was going, and just before reaching the edge of Oak Cliff, at the end of the viaduct, they killed him by striking him twice on the head with an iron bar about thirty inches long and an inch and a quarter in diameter. They then dragged his body a short distance from the road or street in some weeds, where it was discovered. When this was done they returned to Dallas to the residence of Mary Lott, whom it is claimed is an accomplice. Mary Lott testified the three came to her house after she had retired, knocked upon the door; that she got up and admitted them. Sitting about the room they mentioned the fact that they had made some money easy, and said if they would do like they had done they would not have to work so hard. Upon inquiry by Mary Lott they informed her they had gotten this money by "turning" over a white man. In other words, the substance of it is that they had killed a white man and got his money. It is also shown that they divided the money before leaving the house the next morning. Tolbert testified they divided the money at the house, he getting fifty dollars, and that he understood appellant was to receive the larger portion, perhaps half of it. The witness Howard to some extent corroborates him as to the division of the money. Mary Lott testified that two of three parties rented from her a room which they occupied for a week, and at the end of the week they paid the rent and went away. The third one of these parties spent the night and paid for his occupancy of the bed the next morning. The cross-examination of this witness was rigid and critical, evidently for the purpose of discrediting her in every way they could by such examination. This is the substance of the evidence seeking to make her an accomplice, unless it be by the further fact that she was the paramour of the witness Howard. We are of opinion this evidence does not make Mary Lott an accomplice. It is true that she concealed her testimony, or at least did not let it be known for two or three months after the homicide. This would amount to a concealment of the evidence given on the trial. Mere concealment of facts criminating in their nature does not constitute the witness an accomplice. This we understand to be the rule announced in Noftsinger v. State, 7 Texas Crim. App., 301. See Branch's Criminal Law, section 319, for collated cases. It is not shown that she was paid room rent with the stolen money. *Page 353
In an able and exhaustive brief, which shows great research and ability on the part of appellant's counsel, it is contended there are reversible errors in the charge, and not only so but in the failure of the court to charge the law thought to be applicable to the facts which, if given, might have been beneficial to appellant. The trouble is, there were no exceptions taken to the charge during the trial; none presented in motion for new trial or by bills of exception. They are raised for the first time in appellant's brief in this court. As these are presented they can not be considered under our decisions. They are not of that fundamental nature which would require this court to revise for the supposed errors. It is well known that the writer has not been in harmony with this line of decisions from their inception. Johnson v. State, 42 Tex.Crim. Rep.. There has been an unbroken line of decisions sustaining the Johnson case. In three or four of these the writer wrote dissenting opinions, but his views have not obtained. If the errors of omission or commission complained of in the brief were of such a radical nature as to authorize a conviction not justified by the indictment, this court would unhesitatingly consider same and reverse. Such has been also the recognized rule by decision.
It is claimed that the evidence is not sufficient. Whatever we may think about that question the testimony is such that the jury was authorized to reach the conclusion they did. There were two theories strongly presented; the jury could believe either, and they exercised their judgment in favor of the State. We are not authorized to disturb the verdict under such state of facts. Enough has been stated, so far as the State's side of the case is concerned, to show a cold-blooded killing by somebody. The State connected this up with the accomplice Tolbert whose evidence is corroborated. The defendant testified that he had nothing to do with the matter, and supported his testimony fairly well. He also introduced evidence showing that the killing could have been and was done by another party or other parties. Some of the facts are rather persuasive. Appellant's testimony also shows, and from experts, that the deceased may not have been killed and probably was not killed by the use of a blunt instrument, but by the use of a sharp instrument. If the deceased was killed by the use of a sharp instrument the State's case would fail, because Tolbert swore deceased was killed with an iron bar. The wounds on the head, there being two, either fatal, are shown by the embalmer and other testimony to have been inflicted, at least more than probably so, by a sharp instrument. Defendant's testimony places a man named Nelson in such position that he not only could but probably did do the killing, and with an ax. It is not the purpose of this opinion to go into the details of the testimony of either side. These matters were before the jury, and whatever might be the personal belief of the writer, we are of opinion the jury was authorized to reach the verdict they found.
The judgment will be affirmed.
Affirmed. *Page 354
ON REHEARING. February 4, 1914.