ON MOTION FOR REHEARING.
LATTIMORE, Judge.— In the light of appellant’s motion for rehearing we have again gone over this record, and have examined the authorities cited, and others, bearing upon the questions involved. As stated in our opinion, the judgment entered in the trial court recited that appellant had pleaded not guilty upon his trial. The same fact is recited in the charge of the court to the jury. Such being the case, and the purpose of an arraignment being to show the identity of the accused, and that he entered his plea to the indictment, under the authority of Morris v. State, 30 Texas Crim. App., 95; McGrew v. State, 31 Texas Crim. Rep., 336; West v. State, 40 Texas Crim. Rep., 148; Martinez v. State, 69 Texas Crim. Rep., 280; Webb v. State, 55 S. W. Rep., 493, and Davis v. State, 70 Texas Crim. Rep., 563, we conclude appellant’s position unsound, that reversal should be had because the record does not show arraignment.
We make the above statement in addition to the fact that Art. 847 of our Code of Criminal Procedure instructs this court to presume that the accused was arraigned in the absence of some showing that the question was raised in the trial court and there made an issue.
The authorities cited in our former opinion make evident the fact that it was not reversible error for the record to fail to disclose the time and manner of the returning of the indictment, and we feel that it is unnecessary to cite other authorities.
Adverting to appellant’s claim that during the selection of the jury a venireman was permitted to remain in the court *117room, we observe that appellant cites Pena v. State, 29 S. W. (2d) 785, and Norman v. State, 52 S. W. (2d) 1051, in addition to some civil cases, which we do not deem necessary to review. It is made clear in the opinion in the case of Pena v. State, supra, that in addition to requesting the court to retire the veniremen not being examined so that they might not hear or be influenced by the questions or answers of their fellows, — that in the presence of the veniremen who were permitted to remain in the court room, over the objection of the accused, — some of their fellows made statements of a nature calculated to influence and affect those veniremen permitted to remain in the court room. We have no such facts here, and no request was made to retire the venirman, or objection made to his remaining in the court room, and no showing that any statement was made by any other venireman in his presence which might influence him.
In the case of Norman v. State, supra, we held that the matter of retirement of the veniremen is largely one confided to the discretion of the trial court, and since no showing was made that matters were stated, during the examination of the venire, of a nature calculated to injuriously affect the attitude or answers of any other venireman, no injury was shown. As above stated, no effort was made to show that the venireman who was permitted to remain in the court room was objected to, or that anything transpired in his presence which could have injuriously affected the rights of the accused.
In reference to the complaint that the court did not in his charge make any application of the law of adequate cause, or submit the law of murder without malice, — we observe that no request was made for such charge, and no exception taken for failure to embrace same in the main charge; and we further note nothing in the testimony suggesting or in anywise raising such issue. Appellant as a witness testified and admitted his presence with his co-conspirators at the time and place of the homicide, and admitted that the purpose of their mission was to rob the aged couple whom they killed. He says after his fellow-conspirators shot the husband, he, appellant, objected to the shooting of the wife. Not a word in the facts supports any theory of anger, rage, or sudden resentment, terror, etc.
In regard to the admission of appellant’s written confession, upon re-examination we find nothing in the record showing that the said confession was not freely and voluntarily made, but the trial court out of abundance of caution told the jury not *118to consider same unless they believed from the evidence that it was freely and voluntarily made.
We have given careful attention to each claim made by appellant in his motion, as we try to do in every case, — if possible giving more attention to death penalty cases than to others,— but are unable to agree with appellant that he did not have a fair and impartial trial at the hands of the court and jury.
The motion for rehearing is overruled.
Overruled.