Appellant was assessed a penalty of ninety-nine years in the penitentiary for murder.
Appellant and Willie (or Guillermo) Everett were indicted for the murder of Rodolfo Munoz. Willie Everett was first tried and the case is now pending before this court on a motion for rehearing. The facts of the two cases are practically the same, and show that the gun shot wound which killed Munoz was inflicted by this appellant. Willie was tried as a principal. His punishment was assessed at confinement in the penitentiary for a period of twenty years. It will not be necessary to restate the evidence in the instant case, but reference is made to the companion case above referred to, (Page 79 of this volume), and it is here observed that the evidence is sufficient to sustain the verdict of the jury.
The record before us contains seven bills of exception. Bills Numbers 1, 2, and 6 are based on the failure of the court to transfer the case to another county for trial. At the proper time a motion for change of venue was filed. Later in the proceeding this was renewed, as disclosed by Bill of Exception No. 2. After the jury had been selected, a motion was again filed and reliance is had on all of the testimony of the veniremen summoned for the selection of a jury, as given by them on their voir dire examination. In each instance the state contested the motion.
The first bill discloses that appellant called six witnesses who gave it as their opinion that there was such prejudice against appellant in Duval County that he could not secure a fair and impartial trial. The contest by the state was supported by fourteen witnesses, who had the opposite view. A question of fact was presented to the court and we do not think that he abused his discretion in refusing the motion.
Bill of Exception No. 2 shows that additional witnesses were called in support of the motion for change of venue and the testimony was controverted by three, in behalf of the state, who took a different view. We think the court was within his rights when he found against the motion.
After the jury had been impaneled, and before any-evidence was presented, appellant insisted on another application and introduced in support thereof all of the examination of the venire*182men, as above stated, which covered approximately 450 pages of the transcript. It is not practical to review the statements of the entire 180 jurymen whose evidence is relied upon. Practically all, if not all of them, had heard about the case. They knew about the trial of Willie Everett and the pfenalty assessed against him. The papers had published the news of some character, but there is nothing in the record to show what that publication was. A great many of the jurors did express an opinion regarding the matter, but we observe that the trial court exercised great care and caution in ruling on the qualification of the jurors, and many were excused who were not, as a matter of law, disqualified. Because of this ruling we find the large number of jurors examined. The special venire was exhausted and a second list of talesmen were brought in before the jury was secured. We are unable to say, from a consideration of the entire proceeding, that the court abused the discretion lodged in him under the law in overruling the motion for change of venue. Bills of Exception Numbers 1, 2, and 6 do not show error. Art. 562, Vernon’s Ann. C. C. P., cases under note 12.
Bills of Exception Numbers 3, 4, and 5 complain of the failure of the court to sustain the appellant’s challenge for cause of certain prospective jurors. In Bill No. 3 the juror had two relatives who served in the Willie Everett case. He knew the results of that trial. He was also called as a juror in the other case, but was not examined for service. He knew where the killing took place and the name of the man supposed to have been killed. He did not know the parties nor their families. He said that he, “had some idea about it.” What that idea amounted to was not developed, but he said he had not heard enough about the facts to form an opinion as to the guilt or innocence of the parties on trial. What he had heard was hearsay, he had never talked to any witness and had no opinion as to the guilt or innocence of the accused. He said that he would be governed by the law in arriving at a verdict.
Bill Number 4 deals with the juryman M. L. F. Erickson. He had formed no opinion as to the guilt or innocence of the accused which would or might influence his verdict. He did not know the defendant and knew nothing about the case. He said he had heard of the verdict in the other case and that “it might take some evidence to remove such fact from his mind,” but he stated that he would not consider such fact as he did have in mind as evidence against the man on trial. His examination by the court and by the prosecution clearly qualified him as a juror.
*183Bill Number 5 complains of the refusal of the court to excuse the juror Belk upon appellant’s objection.-Under examination by the defendant’s counsel, he said he had “some general idea as to what happened.” This was taken from talk that he had heard, but that such matters would not be considered by him as a juror, and it would not take evidence to remove anything from his mind that he had heard. He did say that it might take some evidence to remove some things from his mind, but the record does not reveal what that was. He declared he had no opinion as to the guilt or innocence of the accused. At the time this juror was presented appellant had exhausted his peremptory challenges and the juror was accepted by the state. No error is shown by this bill.
The most difficult question which we have encountered in this case is brought forward by Bill of Exception No. 7. Ernesto Everett, Jr., was a witness in behalf of appellant. He was not present at the time of the alleged murder, but was laid up in bed from wounds which he received in a difficulty which originated at the saloon of the Everetts, a short time prior thereto. It is in evidence without dispute that the killing for which appellant was on trial had grown out of and was the aftermath of the difficulty between the Everett family and the Munoz family at the Everett saloon. Charges had been filed against the Munoz boys and they were permitted to take bonds and go out to get signers. It is the theory of the state that this fact incensed the Everett brothers and brought about the killing. It is proper to show what had given rise to this killing. The state’s first witness gave his account of the clash between the two families. Ernesto was called as a witness by appellant and gave his account of the things which took place, and which resulted in his being confined to his bed for about seventeen days. On cross-examination the state brought out the fact that Ernesto was charged by indictment with assault to murder. No details were given and the name of the prosecuting witness was not called for. Bill of Exception No. 7 shows that in his argument to the jury the district attorney attacked the testimony of Ernesto and said: “Take the witness, Ernesto Everett, Jr., he is at the present time indicted for assault to murder on an officer.” The evidence did not show that the assault was made on an officer and the district attorney’s argument was improper. Objection was timely made to it, with the request that the jury be instructed not to consider it. The court should have sustained the objection and given the requested charge to the jury.
The argument is presented by appellant that this statement was a reflection on appellant and his kinsman associated in the *184difficulties between the families. We are unable to construe it as being a reflection on appellant. Probably some juror would consider a charge for assault to murder an officer as more serious than one for assault on some other person. We are unable, however, to support the conclusion that this would or should reflect on anyone other than the witness himself. In this view it becomes important to consider the evidence which the witness was giving in the case. The court permitted the defendant to detail, through this witness, the transactions of the difficulty at the Everett saloon. It was important to the defense to show that such a difficulty took place, but the details of the difficulty should be viewed as of minor importance. It is true that they varied considerably from those given by the state’s witness. We think the details which he gave are also of minor importance. The crux of the defense was that they had such difficulty, that it resulted in some fights, that feeling ran high between the parties, and that this caused him to shoot in defense of his brother. The state used the same previous difficulty to show malice. This is disclosed by all of the testimony, regardless of what the jury thought about the witness Ernesto. If the argument brought into the case a new fact reflecting on that witness, the jury could disregard his testimony altogether and still have before them, without dispute, the important fact that a difficulty of the nature described took place. We cannot feel that the error is sufficient to work a reversal.
Reliance is had by appellant on the case of Finley v. State, 169 S. W. (2d) 975. The question there under consideration was a close one and turned upon the fact that the argument presented prejudicial matters to the jury, which, because of the condition of the times, might have more than ordinary appeal. It was without question inflammatory, while in the instant case it is doubted that the evidence given by the witness had very great probative force and the reflection on him, if any, was quite speculative and not certain as in the Finley case.
Finding no reversible error, the judgment of the trial court is affirmed.