The appellant was tried in the District Court of Harrison County under an indictment charging him with the murder of one Horace Stephens. He was found guilty by the jury of murder in the first degree, and his punishment assessed at death, and from said conviction he prosecutes this appeal.
The appellant filed and presented a motion to set aside and quash the indictment in this case, on the ground, as he alleges, that defendant was compelled against his own will, and while under arrest, by officers of the law, to appear before the grand jury and make a statement and give evidence of and concerning the offense with which he stands charged by indictment. The defendant swears to the motion, but no issue appears to have been joined on it, and no facts elicited in regard to same, if, indeed, such a course of procedure as the motion contemplated could have been had under our statutes. Article 523, Code of Criminal Procedure, authorizes a motion to set aside an indictment upon two grounds only, and that suggested by appellant is not one of the grounds named. Williams v. The State, 20 Texas Crim. App., 357.
It appears, that when the witness Curtis was on the stand he was asked by the State's counsel to state what the defendant said to him in a conversation while he was under arrest. The defendant objected, on the ground that defendant had not been warned. The witness stated, that while he and J.W. Ethridge were in the sheriff's office, the defendant came in there, and the witness (Curtis) said to him, "Spearman, old fellow, we are getting pretty close to you. We have got some new evidence against you." That then Ethridge threw the rope that came off the dead body of deceased on the table in front of defendant, and asked him if he had ever seen that rope before. and that defendant looked out of the window, and dropped his head, and said nothing, and looked hacked. The bill of exceptions shows, that the same conversation and incidents had been drawn out of the witness Ethridge by the defendant over the State's objections, and that Ethridge's conversation with defendant was admissible, even if the State had offered it, because, on account of statements then made by defendant, the clothing deceased had on when he was killed was found by Ethridge where they had been concealed, in a pond. This was the version of the witness Curtis of the same conversation and conduct of defendant, as drawn out by the defendant from the witness Ethridge, and was admissible as showing by another witness all that then occurred, being a part of the same act and conversation. Code Crim. Proc., art. 751; Greene v. The State, 17 Texas Crim. App., 395. Regardless of any warning to defendant, this evidence has been rendered admissible, because the clothing of deceased had been found in pursuance of the statement then made by defendant. Jackson v. The State, 29 Texas Crim. App., 460. It will be further observed, that the exception was taken to what the defendant may have said at the time, and not to what he did, though if such exception had been *Page 282 taken, in our opinion it would have been admissible, made so by the testimony of Ethridge as to what defendant did, and how he appeared, as this same evidence had been adduced by defendant from Ethridge.
The court gave a very full and explicit charge, defining who were principals in the offense; and although the evidence was circumstantial, it showed, if defendant was guilty at all, it was as a principal, and not as an accomplice or as an accessory, and therefore the charges asked by defendant on accomplice and accessory were not pertinent to any issue in this case, and there was no error in the refusal of the court to give them. The evidence in this case was of a circumstantial character, and the court gave to the jury a proper charge on the subject. The defendant had the benefit of able counsel. A fair and impartial jury of his own selection found him guilty of murder in the first degree, and assessed his punishment at death.
We have given the record a thorough and careful investigation, and we have discovered no error therein, and the judgment is affirmed.
Affirmed
Judges all present and concurring.