It is made to appear by a bill of exception reserved by the defendant that after the special venire had been exhausted without completing the jury, the defendant moved the court to have the jury for the week, as selected by the jury commissioners, called and tried as jurors before the sheriff should be authorized to summon talesmen from which to complete the panel. There were seven of said jurors for the week present who were not on the special venire already exhausted. The court refused said motion, and ordered the sheriff to summon tales-men from the body of the county, which order was obeyed by the sheriff, and from the talesmen so summoned the panel was completed.
It does not appear from the bill of exception that the jurors selected for the week by the jury commissioners were not summoned as talesmen by the sheriff, and that the jury 'was not completed from said regular jurors. To entitle the defendant to complain of the action of the court *307overruling his motion, although said action might be erroneous, he would have to show further that because of said action he was deprived of a legal right; that is, if he had a legal right to select jurors from the jury selected by the jury commissioners, he would have to show that this right was not accorded him in fact, and that by the action of the court a juror or jurors were forced upon him who had not been selected by the jury commissioners. We hold, therefore, that if it was the defendant’s right to select from the regular jurors before being required to select from talesmen not regular jurors, his bill of exception fails to show that he was deprived of his right, and therefore fails to show any reversible error.
But we are of the opinion that the court did not err in refusing the defendant’s motion. There are decisions of this court holding to the contrary; that is, holding that when a special venire has been exhausted without completing the panel the regular jurors selected by the jury commissioners should be exhausted before resorting to talesmen summoned by the sheriff. Cahn v. The State, 27 Texas Ct. App., 709; Weaver v. The State, 19 Texas Ct. App., 547. These decisions follow the decision in Roberts v. The State, 5 Texas Court of Appeals, 141. That decision was made prior to the revision of thq Code, when there was no statutory provision directing the procedure after the special venire had been exhausted. Article 612 of the Code of Criminal Procedure was added by the revisers, and it provides as follows: “ When from any cause there is a failure to select a jury from those who have been summoned upon the special venire the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury.”
This article does not require that the persons to be summoned shall be those who have been selected as jurors by the jury commissioners. It contains no such qualification, either expressly or impliedly. It is precisely applicable to the state of case with which the trial judge was confronted, and his ruling was plainly in accord with it.
In the Weaver and Kahn cases, supra, we were doubtless misled by the Roberts case, and did not have our attention called to article 612. We are now satisfied that upon the question under consideration our decisions in the Weaver and Kahn eases are wrong, and they are overruled.
With respect to the testimony detailing W. H. Pope’s statements made to Keller, as recited in defendant’s bill of exception No. 2, we are of the ■opinion that it was competent and admissible. Pope’s statements were in our opinion res gestee of the homicide. They were made in a few seconds after the shooting had ceased, and under such circumstances as constituted them a part of the transaction. Whatever is said by any party to the transaction at the time of the transaction is a part of the transaction itself, and is admissible in evidence as res gestee. Thompson v. The State, 19 Texas Ct. App., 593; Kennedy v. The State, 19 Texas Ct. App., 618; Powers v. The State, 23 Texas Ct. App., 42. Pope’s *308statements being res gestee were not rendered incompetent evidence by the facts, if such were the facts, that at the time they were made Keller was under arrest and the defendant was not present.
It was not error to admit the testimony as to the conversation which occurred between defendant and Major Turner soon after the homicide. The declarations and conduct of a defendant, either before or after the-offense, are admissible evidence against him, as evidence indicating the-, intent and motive which actuated him in the transaction with which he-is charged, although such declarations may not be res gestee of such transaction. Langford v. The State, 17 Texas Ct. App., 445; Cordova v. The State, 6 Texas Ct. App., 207; Handline v. The State, 6 Texas Ct. App., 347; Hart v. The State, 15 Texas Ct. App., 202. No statements made by the defendant in said conversation involved any confession of guilt, and hence his statements were not rendered incompetent evidence because-he was under arrest at the time the same were made. The rules governing the admissibility of confessions are not applicable to any statement, of the defendant admitted in evidence against him.
In his charge to the jury the learned judge submitted the issues and the law of murder in the first and second degrees, of homicide by accident, and of self-defense. He did not submit the issue of manslaughter. Defendant excepted to the charge because it did not submit the issue and. the law of manslaughter, and requested instructions upon that issue which the court refused to give, and this action of the court is presented by bills-of exception, and is earnestly insisted upon by defendant’s counsel as error for which the conviction should be set aside.
As we understand and view the evidence in this case it does not present-the issue of manslaughter. This is a prosecution for the murder of Alexander Pope. All the evidence shows that no provocation was given by Alexander Pope to either Keller or the defendant. On the contrary the evidence is uncontradictéd and conclusive that at the time Alexander-Pope was shot by Keller he had his hands raised imploringly, and was beseeching Keller to not shoot. Alexander Pope at no time and in no manner gave the slightest provocation to Keller or to the defendant. All that he did was to endeavor by gentle persuasion to prevent Keller from from shooting W. H. Pope, his brother. To reduce murder to manslaughter the homicide must have been committed “ under the immediate-influence of sudden passion;” and by this is meant that there must be a provocation to cause passion, which provocation must arise at the time of the commission of the homicide, and must not be the result of a former-provocation, and the act must be caused directly by the passion arising-out of the present provocation, and the provocation must be one given by the party killed, and not one given by some other person. Penal Code,, arts. 593, 594.
Defendant’s counsel argue that the theory of accidental homicide is in.
,________ *309"the case; that there is evidence tending to show that Keller shot and. killed Alexander Pope accidentally while attempting to shoot W. H. Pope, and that this theory involves and raises the issue of manslaughter. We have read and searched the record in vain for any testimony which tends to support the theory that Alexander Pope was shot accidentally by Keller. As we understand from the evidence the position of the parties at the time •of the shooting, a shot fired by Keller at W. H. Pope would have gone wide of the mark had it hit Alexander Pope. We think the evidence overwhelmingly shows that Keller shot Alexander Pope intentionally— that is, intending to shoot him, Alexander Pope, and not intending to shoot W. H. Pope. It is true that the learned trial judge instructed the jury upon the theory of the accidental killing of Alexander Pope, but we think the instruction was not demanded or even authorized by the evidence and should not have been given, but the instruction being favorable to the defendant is not error of which he can, nor does he complain.
Another objection made to the charge of the court is that it does not instruct on circumstantial evidence. This objection is answered by the fact that the inculpatory evidence is not wholly circumstantial, but on the contrary the evidence as to the entire transaction is direct. It is true that the evidence relied upon by the State to prove that Keller and the defendant acted together in the commission of the homicide in pursuance of a previously formed and common design is circumstantial, but it is only where the inculpatory evidence is wholly circumstantial that instructions upon that character of evidence are required to be given.
What we have said in relation to the charge of the court disposes of other objections made to it, and to which we will not therefore specifically refer. The main charge of the court was largely supplemented by instructions given at the request of the defendant, and considering all the instructions together we think the charge is a full, lucid, and correct presentation of the whole law of the case.
Bills of exception to remarks made by counsel for the State in their arguments to the jury were reserved by the defendant; also showing by- one of said bills that the audience applauded some of the remarks made by one of the State’s counsel in his address to the jury. With respect to the applause, it was promptly suppressed and severely rebuked by the court, and it is not made to appear to this court that the applause, the character and extent of which is not shown by the bill of exception, had, or was even calculated to have, any influence upon the jury prejudicial to defendant. Cartwright v. The State, 16 Texas Ct. App., 473. As to the remarks of counsel for the State recited in the bills of exception, we think they were improper and should not have been made; but they were not, as we think, of a material character, calculated to affect injuriously the defendant’s rights; nor did the defendant request of the court any instructions directing the jury to disregard such remarks. *310Young v. The State, 19 Texas Ct. App., 536; Kennedy v. The State, 19 Texas Ct. App., 618; House v. The State, 19 Texas Ct. App., 227; McConnell v. The State, 22 Texas Ct. App., 354.
In his application for a continuance, which was refused by the court, the defendant stated that he expected to prove by. the absent witness McKay that two shots were fired before Keller drew his pistol, one of which shots was fired from the direction of where W. H. Pope was standing, and towards Keller, which shot was not fired by either Keller or defendant; that while Keller was standing with his pistol in both hands, looking in the direction of W. H. Pope, who was advancing upon him, he was violently thrown around by some one in the direction of Alex. Pope, when his pistol was discharged, which shot killed Alex. Pope. It can not be questioned that this testimony would be material, but we are clearly of the opinion that the facts set forth in said application in relation thereto are not probably true. These facts are not only uncorroborated by, but are contrary to the testimony of numerous eye witnesses to the transaction, who had as good, if not better, opportunity of seeing, hearing, and knowing what transpired than the witness McKay. In view of the evidence adduced on the trial we hold that it was not error to refuse the defendant a new trial because of said absent testimony. Code Crim. Proc., art. 560, subdiv. 6; Willson’s Crim. Stat., secs. 2169, 2186.
We think the evidence warrants the conviction. It satisfies our minds, as it did that of the jurors, that the defendant and Keller acted together throughout the transaction, in pursuance of a common design and conspiracy between them to kill the Popes, and perhaps others. Phillips v. The State, 26 Texas Ct. App., 228. We think the verdict is a lenient one, considering the gravity of the crime committed and the absence of mitigating circumstances.
Believing that there is no error for which the conviction should be disturbed, and that the defendant has had a fair and impartial trial in accordance with law, the judgment is affirmed.
Affirmed.
Judges all present and concurring.