*173ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.The first point urged in appellant’s motion for rehearing is that bill of exception number four reflects error in permitting proof to be made by the officers who arrested appellant on the night of October 11, 1936, that appellant was at the time of his arrest armed with a double-action 45 Colt’s pistol fully loaded, the objection to such evidence being that it tended to show appellant was guilty of another crime other than the one for which he was on trial, and that the pistol which appellant had was not shown to be the instrument with which the offense being tried was committed.
Appellant seems to view the evidence complained of as the proof of an independent crime, apparently overlooking what to us appears to be the necessarily related facts that appellant soon after the murder for which he was on trial fled to Mexico, and there remained as a continuous fugitive up to the date of his apprehension. The facts last mentioned, we think, differentiate the present case from those cited by appellant in support of his contention. In the Lawrence case, 128 Tex. Cr. R. 417, 82 S. W. (2d) 647, no such condition existed as is here present. There it was sought to prove certain acts of the accused entirely independent of the one for which he was on trial, thus forming the basis for an argument that if he had committed the others, therefore, he had also committed the present one. Likewise, in Watson v. State, 88 Tex. Cr. R. 227, 225 S. W. 753, and Riggins v. State, 42 Tex. Cr. R. 472, 60 S. W. 877, there was no question of flight or appellant being a fugitive from the United States. Appellant also cites Locke’s case, 129 Tex. Cr. R. 432, 88 S. W. (2d) 110; Reed’s case, 123 Tex. Cr. R. 452, 59 S. W. (2d) 377; and Hancock v. State, 123 Tex. Cr. R. 154, 58 S. W. 129; Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120, as supporting his position. In none of them does the question of flight, or being a fugitive appear. They all present instances where proof of other offenses than the one on trial was thought by this court to have been improper.
Appended to bill of exception number four is an explanation by the trial court setting out the facts before him upon which he made the ruling complained of in said bill, and stating his reasons for admitting the testimony sought by appellant to be excluded. We quote from such statement the following:
“Upon the trial of this case one Charlie Wallis, a Senior Patrol Inspector of the United States Immigration Service, was called *174as a witness for the State and testified in substance that he assisted in the capture of the defendant, near midnight, on the night of October 11, 1936, approximately two years after the date of the alleged offense for which defendant was on trial, and that the capture occurred in a remote and isolated section of Hidalgo County, Texas, on that portion of the Military Road south of Donna, Texas, in said County, and near the Rio Grande River, and near the scene of the alleged murder, and that at the time of said capture the defendant was in company, among others, with his brother, Amiliano Martinez and one Braulio Yanez, both of whom are co-defendants in this cause and under indictment, and that at said time the defendant was armed with a 45 double action Colt Pistol, which was loaded with six 'shells, and that said defendant was also in company at said time with a companion by the name of Gil Casares, who was also armed with a 38 double action pistol, which was loaded with six shells, and that at said time both guns were ready to be fired.
“The witness Wallis further testified that he had known the defendant for several years prior to the murder and that the defendant had resided all of that time near the scene of the murder, and that the defendant was an American citizen having been born in the United States, which fact was later admitted by the defendant when he took the witness stand, and that a very few days after the body of the deceased was found the defendant immediately crossed the river and went to Mexico, where he remained practically all the time until the night of his arrest. Other testimony disclosed that shortly after the body of the deceased was found, the defendant transferred his automobile to one Placido Handy, a "co-defendant in this case, also under indictment, and said defendant thereupon went to Mexico, where he remained until he was arrested.
“The witness Wallis further testified that he and other officers attempted to arrest the defendant in connection with this case at about the time he went to Mexico, or shortly thereafter-wards, and that they often laid in wait for said defndant down near the banks of the Rio Grande River near the defendant’s residence and the scene of the crime, on information that he was crossing in the dead of the night to pay visits to relatives on the American side, but they were unable to apprehend and capture him until the night of his capture, as above stated.
“Testimony from Wallis and other officers, as well as from the defendant himself, who voluntarily took the stand in this case, disclosed that the defendant, in company with the above named Gil Casares, illegally crossed the Rio Grande River from a spot in Mexico directly in front of the home of one Felipe Hernán*175dez, a co-defendant in this case and under indictment for this same transaction, to the American side, at a spot near the scene of the crime in this case and close to the residence of this defendant and the residence of this defendant’s relatives; that the crossing was made in the dead of the night, near midnight, and was not over a bridge at any port of entry between Mexico and the United States but was an illegal crossing made by the defendant and his companion, Gil Casares, in a row boat, and that the defendant was apprehended shortly after he made such illegal crossing, at a place and under the circumstances above set out. The witness Wallis further testified that although he and other officers had been trying to apprehend and capture said defendant for a period of nearly two years, this was the first opportunity they had to seize him.
' “As heretofore stated, the defendant voluntarily took the stand as a witness on his own behalf, placed thereon by his counsel, and readily admitted that he and his companion, Gil Casares, were making an illegal crossing in the dead of the night from the Mexican side of the river to a place on the American side of the river near his home, and that the said Gil Casares was armed with a loaded pistol, yet the defendant positively denied that he himself had a loaded pistol or a pistol of any kind, and he denied that the officers found a pistol upon his person when he was captured.
“It was the State’s theory of this case that shortly after the body of the deceased was discovered in the waters of the Rio Grande River near the scene of the crime, the defendant, although shown to have been an American citizen, born in the United States and living practically all of his life near the scene of the crime, on the American side of the river, fled into Mexico in order to escape arrest for this particular crime, and that the officers attempted to arrest him shortly afterwards but were unable to arrest him for a period of almost two years; until the night of his actual arrest and capture; that at the time of the defendant’s capture and arrest he was still attempting to evade and prevent arrest for this particular crime, and was returning to the American side, surreptitiously, to pay a hurried visit to his relatives, with an illegal crossing, of said river, and that the fact he and his companion, Gil Casares, who crossed the river with him, were armed with loaded pistols ready to be fired was a material fact and had a material bearing upon whether or not he, the said defendant, had fled and had escaped arrest for this particular crime shortly after the body of the deceased -was found, and whether or not he, the said defendant, *176was a fugitive from justice from this county for this particular crime, as contended by the State, which theory and facts were disputed by the defendant. The Court allowed said pistol to be introduced in evidence by the State to substantiate the State’s theory of flight on the part of the defendant and the fact that the defendant had remained in Mexico, as a fugitive from justice of this county for this particular crime, for a period of almost two years, or almost immediately after the discovery of the body of the deceased, and to substantiate the State’s theory that at the very time of the defendant’s arrest, which was the first opportunity the officers had to arrest him, he was still attempting to evade arrest for this particular crime, and was prepared, by carrying said weapon fully loaded in his person, to resist arrest; on this theory the Court considered such evidence material evidence for the State’s case, * * *”
The matters stated in the foregoing explanation are borne out by the record.
The State may prove the flight of accused and the pertinent attendant circumstances, and may also show that accused resisted arrest or threatened to resist arrest. Branch’s Ann. Tex. P. C., Sec. 135; Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 160 S. W. 361. In Walker v. State, 74 Tex. Cr. R. 645, 169 S. W. 1156, it was held admissible for the State to prove that accused made threats to resist any effort to arrest him. In the present case the record shows no resistance or attempted resistance of appellant when he was arrested, or whether the arrest was effected under circumstances which would render futile any effort at resistance. Notwithstanding this, under the circumstances certified by the trial court in explanation of the bill in question, we feel unwarranted in holding that error was committed by the court in admitting proof of the fact that appellant was armed when arrested.
In Hunter v. State, 59 Tex. C. R. 439, accused was in jail charged with murder. He escaped from jail. The sheriff effected his re-arrest on the third day after his escape. The sheriff testified over accused’s objection that when accused was re-arrested: —«* * * that he had a 32-automatic pistol and a Colt’s and Winchester, that he had plenty of cartridges, including about a box and a half of 32’s and about seventy-five 44’s; that the automatic pistol was a weapon that shot eight times, and that to fire same all you had to do was to pull the trigger and it would not stop after it got started unless you threw it in a tub of water.” In passing upon the objection Judge Ramsey, writing for the court, said: “There was little or no occasion, we think, *177to have shown in detail the character of arms that he had, though it would have been competent, we think, to have shown that his escape was under such circumstances and with such arms as implied and indicated an effort to defy, arrest, but we are not prepared.to hold especially under the facts of this case, that the introduction of these matters could, in the nature of things, seriously have injured appellant, or that they are sufficient to justify a reversal of the judgment of conviction.”
As throwing some light on the question discussed we refer to Wallace v. State, 93 Tex. Cr. R. 590, 249 S. W. 480; Wynne v. State, 56 Ga. Rep. 113; State v. Shaw, 73 Vt. 149; Johnson v. State, 120 Ga. 135; Campos v. State, 50 Tex. Cr. R. 102; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; State v. Lambert, 104 Me. 394; Am. & Eng. Ann. Cases, Vol. 15, p. 1055, and especially reference is made to the notes thereunder on “Admissibility of Evidence that Accused was armed when Arrested.” The same subject finds treatment in 20 American Jurisprudence, p. 272, Sec. 291.
The second point urged by appellant in his motion for rehearing is that we erred in not holding that bill of exception number five presented error. The bill complains at the reception of evidence from officer Wallis that when appellant was arrested his companion, Gil Casares was armed with a pistol. We observe that at page 199 of the statement of facts appellant himself, while denying that he had a pistol at the time of his arrest, testified without objection that Casares had one, saying “because he (Casares) has been an officer there all of the time.” The bill in question may be disposed of on the general proposition so frequently announced that when evidence complained of goes into the record from another source without objection no error is presented. See 4 Tex. Jur. p. 586, Sec. 414; Hudson v. State, 107 Tex. Cr. R. 330, 296 S. W. 573; West v. State, 116 Tex. Cr. R. 468, 34 S. W. (2d) 253; Pence v. State, 110 Tex. Cr. R. 378, 9 S. W. (2d) 348; Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, and cases therein cited; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S. W. (2d) 54.
The third point in appellant’s motion questions the action of the court in overruling a motion for change of venue. The record on that point is precisely the same as found in Cause No. 20,298, Handy v. State, reported in (139 Texas Crim. Rep. 3); 138 S. W. (2d) 541. The record on the issue mentioned was closely scrutinized as is' evidenced by the opinion in Handy’s case. The question was re-examined upon motion for rehearing *178in said case and the trial court’s action in declining to order a change of venue was sustained. Upon the same record here appellant’s contention is overruled.
Appellant has filed a supplemental motion for rehearing urging that the confession of appellant was obtained in violation of the “due process” clause ofthe Constitution of the United States and comes within the rule announced by the Supreme Court of the United States in Chambers, et al v. The State of Florida, decided February 12, 1940, 60 Sup. Ct. Rep. 472.
Said supplemental motion might be stricken from the record because filed so late, but because of the death penalty having been assessed we prefer to deal with the question on its merits. This court is in harmony with the holding in the Chambers case (supra) as evidenced by the opinions of this court in Blackshear v. State, 130 Tex. Cr. R. 557, 95 S. W. (2d) 960; Abston v. State, 132 Tex. Cr. R. 130, 102 S. W. (2d) 428; Abston v. State, 136 Tex. Cr. R. 152, 123 S. W. (2d) 902, which opinions were written long before the Chambers case was decided. See also Sigler v. State, No. 20,915, decided April 24th, 1940, not yet reported. (139 Texas Crim. Rep. 167.)
The point now urged was not presented on original submission, but since the filing of the supplemental motion we have been at some pains to examine the entire record as it relates to appellant’s present insistence. It is suggested in the motion that the officers obtained three confessions from appellant and that it was not until the third one that its contents were satisfactory to the officers. We think the record fairly construed does not support such a conclusion. Only one confession was used and nothing was said about any other until it was developed by appellant himself on his direct examination. He testified that the first confession related to the killing by himself and some of his co-defendants in the present case of a man named “Conrado” at a point somewhere on the Rio Grande River. This confession was given sometime either Sunday night or Monday morning. If the officers had any information of the killing of “Conrado” up to the time appellant told them about it the record is silent. The conclusion might be drawn that appellant’s statements were not in accord with other information which the officers had — if they had any at said time about the killing they were investigating. On Monday appellant was taken to the river by some of the officers where he pointed out a place where “Conrado” was killed. Appellant was then taken back to the jail in Edinburg. Later he made a second statement about still another *179killing in which he and some of his co-defendants were involved. The name of the party killed on the occasion to which the second statement relates was not known, but it had reference to some transaction in which “morphine” figured, and after they obtained the morphine some one called “The Brush” by appellant went to sell it. Neither of these two statements had reference to a killing where a man and a woman were involved. On Wednesday or Thursday appellant made the confession regarding the killing of the unknown man and woman involved in the present case. Appellant admitted on cross examination that the two prior statements made by him were about other killings than the one for which he was then on trial. Unless we misapprehend the record the foregoing statement fairly explains how three statements became involved in the case, — put into it by appellant’s own evidence.
Appellant tells a story about his claimed treatment by the officers which induced him to make the several confessions which, if true, would put to shame the cruelties of the Spanish Inquisition. He attributes most of the claimed punishment was inflicted upon him by one Ingram, a deputy sheriff. Appellant claimed that Ingram tightened up the hand-cuffs until it was painful, hit him on the head and shoulders with a chain attached to the cuffs; suspended his body with the hand-cuff links over the top of a door and with his toes barely touching the floor; hit him with a blackjack, cursed him, calling him a liar and a s— of a b — . Appellant asserted that Ingram practically put the words of the confession in appellant’s mouth and that he told what was in the confession because he was directed what to say and that he made and signed the statement “so they wouldn’t hit me any more.” Appellant claimed that Uncle Billy Brewster was present when appellant was being subjected to the treatment described.
It is not amiss to here state that Jose Rodriguez, one of the participants in the killing of the man and woman and the violation of the woman against her entreaties, testified upon the trial detailing the horrible incidents of the murder of the man and woman, and ravishment of the latter by appellant and his confederates. The confession of appellant corroborates to the minutest detail the evidence given by Rodriguez. To our minds the confession itself refutes appellant’s claim that the statements in the confession were put in his mouth by Ingram or anyone else. The horrible details, it appears to us, could be related only by one present and participating in the crime. Ingram specifically denies all acts of cruelty or punishment and *180cursing and abusing attributed to him by appellant. He further testified that Brewster did most of the talking to appellant. Uncle Billie Brewster, was 67 years old, and had been deputy sheriff for 85 years, and had known appellant for fourteen or fifteen years. He spoke Spanish as well as he spoke English. We quote from his testimony as follows:
“I recall when this defendant was arrested and I first saw him in the jail in Weslaco, when I went down there with Mr. George Ingram and we talked to this defendant down there, but no one went down with George and me, although Manuel Munoz was with us afterwards. When we first went there to the jail to talk to this defendant, I did most of the talking and I talked to him some there by myself, but neither I nor George nor any one else down there beat or abused or mistreated this defendant in any way, and George Ingram did not hit him with a black-jack or a billy club or hit him with chains in his face and neither did anybody else. After talking with this defendant down there, we came on up to Edinburg with him and talked to him here in Edinburg, and I, myself, did most of the talking to him, but neither George nor I, nor anybody else beat or abused or mistreated Chon Martinez in any way up here and I never saw anybody beat or abuse him, and if anybody is close to Chon it would have been me, and I would not have permitted anybody to have beaten him and if anybody has been with Chon it has been me, except when I have been sick, as, except when I have been sick, I have been around him every day and I have never seen any blood on him at any time. I was in there practically all of the time that Chon made this statement to Mr. Hartley and Mr. Chapa, walking in and out, and I remember when he made the third statement about this particular case here, and he told that story to me before it was taken down in writing and then Chapa was called and it was taken down and signed, and I did not use any force of any kind to get that statement and no force was used at the time that he made the statement to Chapa or at any time, since this defendant has been arrested.”
In addition to Ingram and Brewster the State called as witnesses in rebuttal of appellant’s testimony as to the treatment he claimed to have received, Charlie Wallis, W. C. Greer, Tom L. Hartley, S. B. Bledsoe, C. D. Carnahan, Lee Pettit, Dick Gilliam, Elmer Vickers, J. M. Chapa, A. G. McHenry, Fred J. Meyer, R. T. Daniel and Ben Brooks, Jr. It will be remembered appellant claimed that during all the time he was giving the statements and during the time he was being questioned by the officers about the several statements made by him he was being *181abused, cursed and punished by Ingram, and being told by Ingram what statements to make. Unless appellant’s evidence is to be received and believed in preference to the several witnesses above named appellant’s testimony was far from the truth. Certainly the trial court and the jury were justified in rejecting his evidence and accepting that of the other witnesses on the issue joined between the State and appellant regarding the confession.
We doubt if in all the annals of crime in Texas or elsewhere there has been a more diabolical offense than the one reflected by the record before us. That very fact has impelled us to again examine the questions presented by appellant in his motion for rehearing, and to write at length thereon, being jealous that appellant be deprived of no rights to which he is entitled under the Constitution and laws of this state or the United States.
Believing that nothing is presented which calls for a disposition of the case different from that originally ordered, the motion for rehearing is overruled.
ORDER STAYING MANDATE.
HAWKINS, Presiding Judge." The Clerk of the Court of Criminal Appeals of Texas will stay the issuance of mandate in the above entitled and numbered cause until the appellant has opportunity to present an application for writ of certiorari to the Supreme Court of the United States, and in the event such writ should be granted, to further stay the issuance of mandate until the Supreme Court of the United States shall have determined the case.
This the 21st day of June, 1940.
ORDER.
HAWKINS, Presiding Judge.The judgment of conviction in this cause became final on the 22d day of May, 1940, when appellant’s motion for rehearing was overruled. Thereafter on the 21st day of June, 1940, upon application of appellant’s attorneys the clerk was directed to stay the issuance of the mandate to give appellant opportunity to take such steps as he deemed necessary to have the case reviewed by the Supreme Court of the United States.
It is now made known to the court upon motion of the State that since such stay order no effective effort has been made *182to seek such a review and that no request therefor is pending before the Supreme Court of the United States. By reason of these facts the order of the court staying the issuance of the mandate should be set aside and the mandate of this court should at once issue.
In reply' to the State’s motion attorney for appellant suggests that the reason efforts were suspended to have the judgment of this court reviewed by the Supreme Court of the United States was because of the refusal of appellant to sign the necessary papers. Counsel suggests that in his opinion the reason appellant so refused was because he had become insane since the trial. If the issue of present insanity should be raised this court has no jurisdiction to determine the question, but it must be determined by the trial court after its jurisdiction has been restored, which will occur upon receipt of the mandate of this court. Therefore,' a further suspension of the issuance of the mandate is not deemed proper. -
The court now directs that the order heretofore made on the 21st day of June, 1940, staying issuance of the mandate beset aside, and the clerk of this court is ordered to issue mandate instanter.