ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant urges that the witness Bradley was an accomplice witness, that his evidence was necessary to a conviction and that there is no sufficient corroboration of his testimony; hence he insists that the judgment should be reversed under Art. 718 C. C. P., which precludes conviction on the testimony of an accomplice witness unless corroborated as required by said article.
The learned trial court did not instruct on the question as to whether Bradley was an accomplice witness. From the fact that the charge was not excepted to for said omission nor any special charge on the subject requested we might conclude that *383at the time of the trial appellant did not seriously think Bradley was an accomplice witness. However, if this court should find that he was an accomplice witness as a matter of law, not sufficiently corroborated, and that a conviction could not stand without his testimony, appellant would be entitled to a reversal on account of the failure of the evidence to support the judgment of conviction.
Appellant was operating a still on the “Hitson place” several miles from Cisco. In the forenoon of April 2, 1936, Notgrass, Ingram and Buford Tarver (the deceased) went to said still in Notgrass’ car. It was claimed by deceased that the still belonged to his brother and he wanted to retake possession of it and move it. Notgrass objected to moving the still in his car. The three parties went back to Cisco and returned to the still later, deceased driving his own car and Notgrass driving his car. Notgrass parked his car some distance from the still, which was then loaded on deceased’s car and moved. Appellant, Bradley and Elliott went to the still and discovered it had been moved. They did not see deceased’s car, but saw the Notgrass car, and appellant removed from it the distributor cap so the car would not run. Appellant and the two parties with him then went back to Cisco, but returned after dark in appellant’s car which they parked near the gate into the “Hitson” pasture. In the meantime deceased and his companions (Notgrass and Ingram) had discovered the absence of the distributor cap from Notgrass’ car and deceased went to Cisco, secured another cap, returned to the pasture and placed it on the Notgrass car. Ingram and Notgrass, in the latter’s car, then started back to Cisco. As they passed out at the gate or gap near which appellant’s car was parked, shots from a shot gun were fired from appellant’s car. None of the shot struck the Notgrass car. He and Ingram proceeded towards Cisco and appellant’s car soon followed- it. At this time deceased’s car apparently was still in the pasture. Bradley’s connection with the transaction is learned through his own testimony. He lived at Big Spring, some 150 miles from Cisco. A party by the name of Gunn had brought Bradley to Cisco on the day of the killing. We gather from the evidence that he had some business with appellant, but the nature of it is undisclosed. It seems clear that it had no reference to the killing because the thing out of which the homicide grew — the moving of the still — had not yet occurred when Bradley arrived in Cisco. He, Elliott and appellant went to the location of the still in appellant’s car and discovered that the still had been *384moved. They also found Notgrass’ car from which appellant removed the distributor cap. They never saw the car of deceased. Appellant, Bradley and Elliott went back to Cisco, but later returned to a point near the gate leading into the “Hitson” pasture. They either already had a shot gun in their car or secured one when they returned to Cisco. As the Notgrass car came through the gate from the pasture Bradley fired the shot gun. He testified that he did not shoot at anybody; but fired to scare them, as his party wanted to find out who was in the car coming out of the pasture, evidently believing they had moved the still. Bradley’s claim that he was not trying to hurt anybody is borne out by the fact that none of the shot from the shot gun even struck the Notgrass car. Bradley testified that after the Notgrass car proceeded towards Cisco appellant started his car and followed it. Soon another car, which turned out to be deceased’s, overtook appellant’s car and stopped to one side of the road. As appellant’s car passed he said he thought he knew who was driving the other car and wanted to talk to him, whereupon appellant stopped his car a few steps in front of the other car, got out and went back to the other car. Bradley testified that he did not know who was in the other car when appellant went back towards it and did not know that appellant had a pistol with him at the time, although he had seen a pistol in the glove compartment sometime during the day. After some loud talking, which Bradley could hear but did not understand, two pistol shots were fired back at deceased’s car. Appellant then came to his own car, got under the wheel and proceeded to Cisco. Appellant took Elliott home, got his wife and then drove to Big Spring, taking Bradley with them in appellant’s car; Gunn, who had brought Bradley to Cisco, having already returned to Big Spring. It was late' at night when they arrived. Bradley’s wife was not at home and he let appellant and his wife occupy his (Bradley’s) room for the night, Bradley spending the remainder of the night with Gunn. The next day appellant returned to Cisco and surrendered to the officers.
Because of appellant’s insistence that Bradley was an accomplice witness we have detailed at some length his connection with the killing. We entertain serious doubt if the evidence even raises an issue of fact upon the point mentioned. Certainly it does not characterize him an accomplice witness as a matter of law. It would only be in the latter event that appellant’s contention that the judgment should be reversed for lack of corroboration could be sustained. Pitts v. State, 85 Tex. Cr. R. 14, 210 S. W. 199.
*385The only other matter urged in the motion for rehearing is that the trial court erred in refusing to permit appellant to develop on cross examination of the witness Stephens some conversation with appellant, a part of which he contends the State developed. The bill is defective in failing to show what the conversation was. It merely states that he had a conversation. We observe that the statement of facts leaves the subject in the same condition. Stephens testified that he had a conversation with appellant, but never goes any further.
Believing the case was properly disposed of on original submission, the motion for rehearing is overruled.