The appellant was prosecuted and convicted on an indictment which charges the murder of one William Simms, as having been committed in Limestone County, on May 31, 1878.
The first count in the indictment charges the murder upon *238the defendant, “ W. W. alias Bunk Simms.” The second count charges that the murder was committed by one J. T. Plummer and the defendant, in which the defendant is also charged as an accomplice of Plummer in the murder. The defendant, on his arraignment, pleaded not guilty, and on a trial below was convicted of murder in the first degree, the jury having returned their verdict in the following form: “We, the jury, find the defendant guilty as a principal, and guilty of murder in the first degree.” Judgment of the court was entered upon the verdict, declaring that the defendant should suffer the penalty of death. Motions for a new trial and in arrest of judgment were made, which being overruled, an appeal is prosecuted to this court on the following assignment of errors committed on the trial: —
1. Because of error in the court in refusing to give the charges asked by defendant’s counsel, and refusing a new trial on account of said error.
2. Because the court erred in refusing to grant a new trial because of this error contained in the charge of the coui’t, to wit: “ To corroborate means to strengthen, to give additional strength to, to make more certain ; and the corroboration may be as to facts testified to by the accomplice, or as to other and different facts tending, in either case, to connect the defendant with the crime committed.”
3. Because the court erred in refusing to set aside the verdict of the jury because the same is contrary to the law and the evidence.
4. Because the court erred in refusing to set aside the verdict on account of prejudice of the juror, whose name was unknown, who, as shown by the affidavits of J. A. Brackett and E. J. Simms, stated in substance, before the jury was empanelled, that “ if he was taken on the jury he would hang that man,” referring to the defendant, W. W. alias Bunk Simms.
5. Because the court erred in overruling the defendant’s motion in arrest of judgment.
*239It is worthy of notice that there is not in the entire transcript a single bill of exceptions to any ruling or action of the court during the trial.
Counsel for the appellant in their brief, on file, appear to treat the first and second errors assigned together, and “ specially insist that the law as to the corroboration of the accomplice Plummer, and as to circumstantial evidence, was not correctly submitted in the charge of the court; ” and they say: “ The charge complained of and set out in the second assignment is, to say the least of it, ambiguous and confused. The jury may or may not have understood it. The probability is that they did not,” etc. After a very careful and attentive perusal of the charge complained of, we are constrained to say that, in our judgment, it is not properly subject to the criticism made by the counsel. The charge on circumstantial evidence is as follows : —
“ To warrant a conviction on circumstantial evidence alone, the circumstances must not only be consistent with the guilt of the accused, but inconsistent with any other rational hypothesis or conclusion. The circumstances relied upon must be consistent with each other and consistent with the fact intended to be established, and, when taken together, must lead to a satisfactory conclusion, and leave the mind without reasonable doubt as to the guilt of the accused. But when the evidence is in part circumstantial and in part direct, and, taken altogether, leaves no reasonable doubt of the guilt of the accused, he should then be convicted ; otherwise, acquitted.”
The charge on the subject of the testimony of an accomplice and the necessity of corroboration is as follows : “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other testimony tending to connect the defendant with the offence committed; and the corroboration is not sufficient if it merely shows the commission of the offence, —that is, if it merely shows that a murder has been committed. The term “ accomplice,” as here used, *240includes any one connected, in a criminal sense, with the offence committed, either as a principal or as an accomplice or otherwise. To corroborate means to strengthen, to make more certain, to give additional strength to ; and the corroboration may be as to facts testified to by the accomplice, or as to other and different facts tending, in either case, to connect the defendant with the crime committed. If the testimony of Plummer, the accomplice in this case, has been thus corroborated, and the evidence then, taken all together, leaves you without reasonable doubt as to the guilt of the defendant, you should return a verdict of guilty; otherwise not guilty.”
With reference to the charge on circumstantial evidence, we are of opinion the charge as given to the jury meets all the demands of the law as to the conclusive effect of that character of testimony in order to authorize a conviction upon it, even in a case depending alone upon circumstantial evidence. Under the charge, the jury could not have convicted the defendant unless they had believed that all the circumstances relied on were consistent with each other and with the defendant’s guilt; and not only so consistent, but also that the facts proved were wholly incapable of being explained on any other hypothesis consistent with reason and the innocence of the accused. It is the settled rule of this court that in a case depending alone on circumstantial testimony it is a part of the law of such case that the jury should be properly instructed as to the nature and character of that kind of testimony in order to warrant a conviction upon it alone. Hunt v. The State, 7 Texas Ct. App. 212, and authorities there cited. And it is also settled that the law does not require that a charge on circumstantial evidence, or on any other subject, should be couched in any particular set of words or phrases; so that the ideas are sufficient, and so expressed as that the jury can readily comprehend the meaning of the language employed, the demands of the law will be satisfied. Rye v. The State, at the pres*241ent term, ante, p. 163. It will be found, on examination, that in many adjudicated cases, when charges are in a certain specified form, the courts have held them as proper instructions to go to the juries, not so much on account of the form, but because the court had not given the substance in charge.
With reference to the charge as to the testimony of the accomplice, we are of opinion that it was not calculated to have the effect on the minds of the jury contended for by counsel. The charge embodies the substance of the law as found in the Code of Criminal Procedure, art. 623 (Rev. Code Cr. Proc., art. 741), as follows: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offence committed, and corroboration is not sufficient if it merely shows the commission of the offence.” But it is insisted on behalf of the appellant that there were matters immaterial to the issue given in evidence by the accomplice, and that he was contradicted in material matters by other witnesses, and that under the charge the jury might have deemed the corroboration in immaterial matters a sufficient corroboration of the accomplice to so strengthen and support his testimony as to have induced the verdict of guilty. It will be seen by the charge as copied above that the court gave a charge which we deem to be sufficient on the subject of circumstantial evidence, followed by a charge on the subject of accomplices, and gave then a correct definition of the term accomplice when used with reference to a witness as not being sufficient to convict upon, unless corroborated by other testimony, which has been settled to mean those who have participated in the commission of the offence, by numerous decisions both of the Supreme Court and of this court, and gave a substantially correct definition of the meaning of the term corroborate; and following these instructions, and in immediate connection therewith, the following: “If the testimony of *242Plummer, the accomplice in this case, has been thus corroborated, and the evidence then, taken all together, leaves you without reasonable doubt as to the guilt of the defendant, you should return a verdict of guilty; otherwise, not guilty.” We are of opinion this instruction was a plain and appropriate application of the law to the facts proved, with one exception hereafter to be noticed more particularly. If there was irrelevant testimony admitted without objection, and there was also material testimony adduced on the trial, the introduction of immaterial testimony would not, of itself, require the reversal of the judgment. The Supreme Court, in Burton v. The State, 21. Texas, in considering a similar subject to the one here presented, uses the following appropriate language :—
“The question here presented is, that when the testimony of an accomplice is corroborated in numerous important and material parts of his evidence, will the admission by the court of a corroboration in an immaterial part vitiate the verdict found by the jury upon the whole of the evidence. No authority has been found establishing such doctrine. Indeed, it would often be almost impossible to permit a corroboration in a material part without at the same time permitting it in an immaterial part.” It was also said in Burton’s case, that “ a case might happen that an undue importance might be attached to a corroboration in immaterial matters, by which the jury would be misled.” Have we not here presented just such a case?
Neither the provisions of the Code nor the decisions of the courts have defined precisely what is material and what immaterial corroboration in such case, or the source from which the corroborating testimony must come, any further than as expressed in the statute, copied above, which requires that it be “ evidence tending to connect the defendant with the offence committed.” Myers v. The State, 7 Texas Ct. App. 640. So it would seem (as seems to have been the opinion of the judge who delivered the charge *243under consideration) that whether the other evidence corroborated the statements of the accomplice, or not, was a matter of no consequence, so it tended to connect the defendant with the offence committed. If the corroborating testimony, of itself, tends to connect the defendant with the commission of the offence for the commission of which he is on trial, it would be such corroboration as the law recognizes, whether the corroborating facts have been specifically testified to by the accomplice or not. The nearest that the courts have come to deciding what is material is that found in Coleman v. The Slate, 44 Texas, 109, where it was held as follows : “ It is not enough that the evidence of an accomplice be corroborated by other testimony as to one of several parties charged with the offence ; the confirmation should be on some fact which goes to fix the guilt on the particular person on trial.” See the authorities cited in Coleman’s case.
It has been said that the supporting evidence need not be sufficient to convict upon; for in such a case there would be no need of using the testimony of an accomplice. Nourse v. The State, 2 Texas Ct. App. 317, where the Supreme Court of California is cited as having held “that the corroborating evidence may be slight, and entitled to but little consideration ; nevertheless, the requirements of the statute [similar to ours] are fully fulfilled if there be any corroborating evidence which, of itself, tends to connect the accused with the commission of the offence.” In Burton’s case, cited above, it was said of the testimony of an accomplice and the charge of the court, that “ this must, of course, be in a material matter. And the court so charged the jury.” But it is not seen that the decision turned upon the charge of the court. The court said, however: “Our Code establishes the rule in accordance with what is the practice of the courts generally, requiring the testimony of an accomplice to be corroborated in some matter connecting the defendant with the commission of the offence.” We *244are of opinion the corroboration must tend, not remotely, but directly and immediately, to connect the person against whom it is offered with the commission of the offence. Jones v. The State, 7 Texas Ct. App. 457.
Without pursuing this inquiry further, our conclusions are that when the court shall have charged the jury on this subject in the language of the statute, substantially, it would ordinarily be sufficient, so far as the charge is concerned ; and whilst the law would not sustain a conviction on the testimony of an accomplice alone, its demands would ordinarily be satisfied if there was other evidence adduced which tended to connect the defendant with the offence committed, restricted as was done in the present case ; but that the corroboration would not be sufficient if it merely shows the commission of the offence, — that is, that in this case a murder had been committed. With the exception of this restrictive quality, there is no material difference between the common-law rule and that prescribed by the Code.
We are therefore of opinion the court did not err, either in the charge as given to the jury on the two subjects of circumstantial evidence and accomplices, or in refusing to give the instructions asked by the defendant’s counsel, with a single exception, which would not generally arise. In one of the charges asked by the defendant it is assumed that a State’s witness named Peter Williams was also an accomplice as well as the witness Plummer, and the court was asked to charge that one accomplice could not support another, but that both must be corroborated by other testimony. The judge, in refusing the special instructions, says, with reference to this witness : “ There is not a particle of evidence even tending to make him a particeps criminis.” In our examination of the evidence as set out here, we find nothing to contradict the view expressed as to the witness Williams. So that whilst the charge refused may announce a correct rule of law, abstractly considered, it would have been error to have given it in the present case; because *245not applicable to the facts of the case. The charge is a carefully worded instruction to the jury upon every legitimate view they could take of the testimony, and, except in one instance, as an enunciation of the law arising upon the facts, was substantially correct.
Passing for the present the third assignment of error, we notice the fourth error assigned.
It is urged in the motion for new trial that one of the persons who sat on the trial stated, before he went upon the jury, that if taken on the jury he would hang that man, referring to the defendant, and two affidavits were filed in support of the motion, the two affiants stating that they did not know the name of the person. The prosecuting attorney filed, in opposition to the affidavits filed in support -of the motion for a new trial, affidavits to the effect that the affiants supporting the motion were incredible persons, and not worthy of belief.
An affidavit was also filed by one Griggs, apparently the juror in question, who states he remembers saying, in a jest, to one of the defendant’s attorneys, about this : that he (Griggs) was a contrary sort of fellow, and that he (the attorney) had better not take him (Griggs) on that jury, and might have said that if he did, he (Griggs) would hang him (Simms), but does not recollect having said so; .says that he had formed no opinion as to the guilt or innocence of the defendant; did not know him or the deceased, and arrived at his conclusion as to the guilt alone from the testimony, and the law as given by the court.
It appears from the transcript that when the motion for a new trial was being heard, the State took issue with the defendant, under authority of art. 181 of the Code of Criminal Procedure, which provides that “ the State may take issue with the defendant upon the truth of the cause set forth in the motion for a new trial, and in such case the judge shall hear the evidence, by affidavit or otherwise, and determine the issue.” This is anew provision, adopted for *246the first time as a part of the Revised Codes, which, it seems from the dates, went into effect between the time of the trial and the time of hearing the motion. The court heard the motion and the testimony both by the affidavits filed and by oral testimony, a statement of which is set out in the transcript. From the statement of the evidence, it appears that what the juror said before the trial was done in order to avoid being taken on the jury. It appears that the remarks, whatever they were, were probably made in the presence and hearing of one of the counsel for the defendant. The court overruled the motion, and so far as this ground of the motion is concerned we are of opinion the testimony sustains the action of the court.
It may not be amiss, in this connection, to notice a supposed error in the proceedings, which is presented for the first time in this court, to the effect that the defendant was entitled to the ameliorated punishment provided for in the Revised Penal Code, which provides that “ the punishment for murder in the first degree shall be death, or confinement in the penitentiary for life.” This is not now an open question in this court. In a case decided, as in the present case, the Revised Codes had gone into effect and become the law in this State after the trial and conviction. This was the case of Walker v. The State, 7 Texas Ct. App. 245. In that case, counsel for the appellant, Walker, who had been convicted of murder in the first degree, and his punishment affixed at death, which was the only punishment for murder of the first degree known to the law at the time of his trial, took the position and maintained it, in a brief which commanded the most thorough examination from the court on account of its marked ability and the zeal with which it was prosecuted, that, inasmuch as the change in the law had gone into effect during the pendency of the appeal, the defendant was entitled to the amelioration of the new provision. After a patient and thorough consideration and comparison of the different statutory provisions, it was held *247that sect. 6 of the final title of the Revised Statutes controlled, and that, agreeably to the provisions of that article, the law in force at the time of the trial was the law of the case. In the present case the trial was concluded, the verdict rendered, and judgment entered, on or prior to the twenty-fourth day of July, 1879, which is the day on which the Revised Penal Code went into effect and became a law, agreeably to the published copy printed and published by authority of the State; but the trial was had, the defendant had been arraigned and had entered his plea, the jury had been empanelled and sworn, the witnesses had testified, the court had charged the jury, and the jury had taken the case and had retired to consider of their verdict, under the old law and while its provisions were in full force. So that, on the authority of Walker’s case, the change in the law did not affect the case in any way beneficially to the defendant. There was no error in overruling the motion in arrest of judgment.
Returning to the third assignment of error, — viz., the refusal of the court to grant a new trial because the verdict is contrary to the law and evidence, — we are constrained to say that the testimony, as set out in the statement of facts in the transcript, is not satisfactory. The testimony of the witness Plummer, a conceded participant in the murder to an extent at least requiring corroboration, was extended, on cross-examination, to many matters of an apparently immaterial character, for the purpose of contradicting his testimony by that of other witnesses ; and the same may be said as to the witnesses introduced for the purpose of corroborating the accomplice; and in this manner there was a mass of testimony before the jury, some of which tended to connect the defendant with the commission of the murder, and much of which had no such tendency, that we can perceive. We are not certain, in view of these peculiar circumstances, that the charge of the court sufficiently cautioned the jury against attaching undue weight to these unimportant and immaterial matters of inquiry, and in confining the *248jury strictly to a consideration of the facts in evidence, which tended to fix the guilt upon the defendant. -The evidence upon which the guilt of the defendant depended being so largely circumstantial in character, and in view of the danger of the jury being misled by this mass of testimony having no direct bearing upon the vital point in the case, we are unable to see that the jury have not found their verdict upon the testimony of the accomplice, unsupported and not corroborated by other testimony which, of itself, tended to fix guilt upon the defendant. In seeking among the testimony other than that of the accomplice, Plummer, we are unable to point out the particular facts testified to by other witnesses which connect or which tend to so connect the defendant with a participation in the murder of the deceased as that it would be safe to permit the conviction to stand, and become a precedent in the adjudication of similar cases hereafter. On another trial, should the testimony be the same, or similar to that of the present, the attention of the court is specially directed to the necessity of confining the jury, in their deliberations, to the testimony which tends to connect the defendant with the offence committed, to the exclusion of those phases of the testimony which have no such tendency.
Because of the uncertainty of the testimony, and because of the liability of the charge to have misled the jury to the prejudice of the defendant, the judgment must be reversed and a new trial awarded.
Reversed and remanded.