That provision in our Code of Criminal Procedure which provides that the fact of a presentment of an indictment in open court by a grand Jury shall be entered upon the minutes of the proceedings of the court, noting briefly the style of the criminal action and the file-number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond (art. 415), can ■ hardly be construed as imperative and absolutely indispensable to the validity of all subsequent proceedings.
It was evidently designed by the article in question to reg*440ulate a matter of practice and to prescribe a uniform mode for recording presentments, and not to furnish a sole and exclusive test by which the authenticity of'an indictment must be established. It is a constitutional right to be tried for a felony, under our law, solely upon an indictment preferred by a grand jury, and a party brought to trial is privileged, at the proper time and by the proper method, to-put in issue the authenticity of the paper claimed by the prosecution as such indictment. Upon the trial of such an issue, the record of its presentment in open court as required by law would be a conclusive circumstance that an indictment against the identical party on trial, indorsed with a similar file-number, had been duly presented, but it would still remain for inquiry and determination whether or not the particular paper before the court was in fact the same document. And this is the material question. It cannot much concern the defendant whether the preliminary record is in exact accordance with the law, but he is vitally concerned in knowing whether or not a grand jury, as a result of their investigations under oath, have preferred and caused to be filed against him an accusation for crime in the form prescribed by law.
And in addressing itself to this investigation, the court is not required to look beyond the indictment and its file-mark. Before the adoption of the Codes, it was held that an indictment found among the files of the court, and recognized as an authentic paper, proves itself, when the question of its authenticity is raised on an issue to a plea to the same indictment. Carter v. The State, 12 Texas, 503; The State v. Clarkson, 3 Ala. 378. And under the Codes the same rule necessarily obtains. No mode of pleading is therein provided, by which a defect or irregularity in the record of presentment can be availed of by a defendant; and if it is desired to put in issue the authenticity of an indictment, it can only be done by a motion, in the nature of a suggestion to the court, that there is no indictment on file *441against him, which motion is determined by an inspection of the paper purporting to be an indictment.
The indictment at bar bears the file-marks of both the clerk of the District Court of Waller County and of Austin County, and the file-number of the case as stated in the record of presentment in the District Court of the former county; and we may well assume that this did not escape the attention of the learned judge who presided on the trial. A doubt as to its absolute genuineness and authenticity could hardly arise, but if any such should obtain, we are not sure that the certificate of the District Court of Waller County is not competent in law to dispel it. English v. The State, 4 Texas, 126. The irregularity in the minutes of the District Court of Waller County was immaterial; and not calculated in any manner to prejudice the rights of the defendant to a fair trial under the forms of law; and not having been objected to in the court where presented, an objection came too late after change of venue to another county.
Upon the trial of the cause, the State offered in evidence certain declarations made by Eeuben Loggins, father of defendant, and jointly indicted with him for the homicide, but not on trial with defendant, a severance having been granted, to the effect that three days before the homicide Eeuben Loo'o-ins had declared that the deceased was the cause of the DO death of Thomas Loggins, his son, at the hands of Dan Morris, brother of deceased, and that the deceased ought to die, and must die. Defendant objected to this testimony because it was hearsay and irrelevant and because he was not present, and could not be inculpated by the declarations of Eeuben Loggins made in his absence, there being no evidence showing a conspiracy between them. The objection was overruled and the evidence admitted.
The principle authorizing the introduction in evidence of the declarations of a co-conspirator, though originally constituting an exception to the general rule excluding hearsay *442evidence, has become fixed in the law of evidence, and is as prominent a feature of that law as the general rule itself. Whenever a combination between two or more persons to do an unlawful act is shown, the acts and declarations of each, done and said during the pendency.of the combination, in pursuance of the original concerted plan, and with reference to the common object, is legitimate evidence against the other. It makes no difference at what time any one entered into confederation, for immediately upon such entrance, his liability attaches as well for the past acts and declarations of his confederates as those occurring in the future, anterior to the final consummation of the enterprise. Baker v. The State, 7 Texas Ct. App. 612. There must be, however, some evidence introduced before the jury, prior to their retirement, from which it may be legitimately inferred that at the time the act of the confederate was done or his declaration made, by which it is sought to inculpate the party on trial, a combination had in fact been then entered into by the actor or declarant with some other person, to effect the common unlawful purpose ; for if the act was done or the declaration made anterior to the formation of any conspiracy, it is significant only against the party himself and admissible only against himself. Cox et al. v. The State, ante, p. 254.
Ordinarily, the mere proof that two or more parties were actually engaged in the commission of a crime does not lead to the necessary inference that days, or weeks, or months before its commission they had mutually undertaken and agreed to its commission. It more often happens that such combinations are speedily made and the common purpose immediately executed ; and it would be a doctrine fraught with mischievous results if the mere proof of an actual commission of a criminal act by two or more parties was sufficient, in itself, to justify the conclusion that a conspiracy had been formed a week or a month before by these same parties to commit the particular offence in ques*443tian. A conspiracy, like crime itself, is susceptible of proof by circumstances, which are addressed to the trial judge in the first instance, when called to rule upon the competency of the testimony. And after the acts or declarations of a co-conspirator not upon trial are admitted in evidence, and the evidence as to the existence of a conspiracy at the time such acts were done and such declarations were made is not conclusive, the question as to the existence of such conspiracy at the time of the acts or declarations should be submitted to the jury under appropriate instructions, with directions to disregard such evidence in case the conspiracy had not been established to their satisfaction. Ormsby v. The People, 53 N. Y. 472.
In view of these principles, we are of opinion that the declarations of Beuben Loggins, if admitted at all, should have been submitted to the jury with an instruction embodying the law regulating that character of evidence, and the jury should have been told that before its consideration they should first determine, from all the evidence before them, that at the time such declarations were made, if any such declarations were made, Beuben Loggins had combined or agreed with some other person to slay the deceased. Of course, if such conspiracy had an existence at the time of the declarations, and Henry Loggins joined in the unlawful enterprise only a few moments before its final consummation, such declarations are as legitimate evidence against him as against the person who uttered them.
In the further progress of the trial, the prosecution introduced in evidence, over objection of the defendant, the declarations of Beuben Loggins, made after the homicide, and when informed of it, which declarations were made in the presence of the accused, and were as follows : “Beuben Morris caused my son’s death. I said he should go dead ; and now, you see, he is dead.” The witness further testified, over objection, as follows : “ I told Capt. B. Loggins, in the presence of Henry and Williford, that Jim and,I *444wanted to go to see the body. He said we had best not go ; that I might be questioned about this thing. He told me to keep my mouth shut.”
It is assumed that the objections to this testimony were overruled because, although these declarations were made after the culmination and completion of the conspiracy, yet they occurred in the presence of the accused, and were therefore admissible against him. On general principles, this view would seem to be correct. Generally, the declarations of third persons, made in the presence and hearing ■ of the accused, are admi-sible in evidence against him ; but to this rule there are many well-defined exceptions. If the accused, at the time the declarations were made, was deaf, or intoxicated, or asleep, the rule does not obtain. Neither does it apply when the statements made do not properly call for a response from the accused. The Commonwealth v. McDermott, 123 Mass. 440; 2 Whart. on Ev., sect. 1138; 1 Greenl. on Ev., sects. 197, 199, 200, 233. We cannot understand how or why the accused, in this particular instance, was called upon to notice in any manner the declarations of Reuben Logo-ins as set out above. The conversation was not had with nor were the remarks addressed to himself, and any remark made by him pending the conversation might have been classed as impertinent. He was not called upon to say anything, and his silence under the circumstances cannot be indicative, even in a remote degree, of guilty complicity in the homicide, or assent to the remarks made in his presence. Had Reuben Loggins said, “I said he should die, and we have killed him,” then it would have been incumbent on the appellant to immediately disclaim his participancy, and his silence would have justified a natural inference that the statement was true, else he would have repelled it. Whart. on Ev., sect. 1136. The testimony was incompetent, and upon objection should have been excluded.
The other errors assigned, and presented with great zeal *445and ability by counsel for appellant, are found, upon examination, either of an immaterial character, or in truth not errors in fact and in law. The charge of the court upon the law of circumstantial evidence presented clearly to the jury the principles which should govern them in reaching a conclusion upon that character of evidence, and it was not requisite that more should be done, even upon request of appellant’s counsel. The law prescribes no exact formula of words in which a court is required to convey to the minds of a jury the nature and degree of conviction which must impress itself upon their minds before they are justified in convicting upon that character of evidence alone. The language employed is left to the selection of the court, and it is sufficient if, upon inspection here, it is found that the substance of the principle has been imparted to the jury in such manner as to impress itself upon their attention, and cause them to duly observe it in their deliberations. Brown v. The State, 23 Texas, 195.
Because of the admission of incompetent evidence, as herein indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.