If an indictment have endorsed on it the names of the witnesses upon whose testimony before the grand jury same was found, this is a compliance with the requirement of the statute quoted in our original opinion. It is not denied in this case but that the above rule was met. The State does not know, and in the very nature of things, — can not, what testimony may become necessary in the development of a given case, and this court will doubtless never respond favorably to an appeal for reversal because, as in this case is made certain by the qualification of appellant's bill of exceptions, the State has used witnesses whose names were not on the indictment, and not furnished appellant before the trial began, and the materiality of whose testimony became known for the first time during the trial. There is not even a suggestion of surprise, or injury, in the bill of exception making this complaint.
Officers went to the home of Drew Pruett, an uncle of this appellant, apparently looking for appellant. The uncle gave them permission to search his house. They observed a scuttle hole in the ceiling of the building. One officer, with the assistance of others, climbed through this hole and found appellant above the ceiling armed with a pistol and concealed behind a chimney. An overcoat was there found which had been taken by appellant in the perpetration of a robbery. The officer was asked when on the witness stand, according to a bill of exceptions, if appellant resisted arrest, and over objection answered affirmatively. Every presumption of regularity obtains on appeal unless and until the contrary is shown. Appellant was concealed, and the fact that he was trying to escape or evade arrest seemed apparent. No showing was made in any bill of exception that the officers did not have reliable information from credible sources that appellant had committed a felony and was about to *Page 51 make his escape. We think this matter correctly decided in our original opinion.
Bill of exception No. 4 is qualified by the trial court with the statement that the cross-examination by the State's attorney was justified by the conduct of appellant while on the witness stand. There is no exception to the qualification. William Pruett, Sr., took the witness stand voluntarily and testified in behalf of his son, this appellant. We perceive no well founded reason for the objection to the introduction of a statement made by said witness while in custody, which was contrary to his testimony given on this trial. He was not under indictment for this offense, nor as far as we can tell for any offense at the time he testified. Objections to the testimony which are argued in the brief, were not made to the testimony when offered. It is not shown that William Pruett, Sr., did not understand or know fully the contents of the written statement signed by him. We have carefully examined each of the contentions made in the motion, and are of opinion that same are without merit.
The motion for rehearing will be overruled.
Overruled.