On Appellant’s Motion for Rehearing.
HAWKINS, Presiding Judge.Appellant renews his contention that the statements made by him to Jasper Garcia should not have been admitted in evidence because appellant had surrendered to Garcia, and was in his custody, and that the admission of this evidence was in violation of art. 727, C.C.P. The question was brought forward in appellant’s bill of exception number three, and in the trial court’s bill of exception number one. We have again examined both bills as well as Garcia’s testimony on pages 36 and 37 of the statement of facts, to which we are referred in the court’s bill. It would serve no useful purpose to lengthen this opinion by a recital of the facts upon which the solution of the question turns. The trial *820court heard the testimony upon the voir dire examination of the witness Garcia to determine the admissibility of appellant’s statements made to the witness, and his conclusion is concisely stated in the bill ■ prepared by the court as follows: “The Court disagreed with Mr. Ragsdale’s contention that the testimony showed that Jasper Garcia was taking the defendant in custody or in any other manner had any control over the defendant, and that the said Jasper Garcia was acting as a de facto officer, and it was the view of the Court that the entire proceedings showed that Jasper Garcia was- acting only as a consultant and a friend of the defendant, and that the defendant, at the time of his conversation with Jasper Garcia, was not under arrest, and had ■ no reason to believe that he was under arrest or any kind of restraint or custody, and did not believe that he was under arrest or any manner of restraint.”
From a re-éxamination of the whole matter we still believe the trials court’s conclusion as above shown was correct;
Appellant again urges that the evidence falls short of‘supporting a killing upon express malice. A careful review of the facts fails to impress us with the soundness of this contention. The State’s evidence upon this point was accepted by the jury as true and ■showed that appellant had become incensed at deceased over a money transaction, and because of that had gone to the brother of deceased late at night to decline to act as God-father to the brother’s child; and appellant’s statement to Garcia and to the brother of deceased shows this money .matter .still rankled in appellant’s -breast, and supports the conclusion from the State’s evidence -that this was the moving cause of the killing.
Regarding bill of exception number five complaining of argument which is set out in our original opinion, we now. believe the recital in the bill that the statement was made in the opening argument for the State is sufficient to negative the fact that it was not provoked by any argument of appellant’s counsel,. but we do remain of the opinion that no reversible error' appears for the argument complained of.
Bills 7, 8, 9, 10 and 11-were properly disposed of for the reasons stated in our original opinion. However, because of the oral argument in submitting the motion for rehearing we advert to bills eight and nine, which reflect the argument that the witness Garcia had committed perjury, and denounced him therefor. It is admitted by appellant that the witness had committed perjury, but because in some respects he supported appellant’s version of the killing it was argued in presentation of the motion for rehearing that such argument in the trial court was an abuse of appellant, and a reflection upon him which was not permissible. We are not able to logically follow the argument in the trial court to the conclusion of appellant’s counsel in his oral argument before this court.
Having considered all matters presented in appellant’s motion for rehearing and oral argument thereon, we remain of opinion that no reversible error appears, and the motion for rehearing is overruled.