Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. Appellant, Howard Magee and Otho Oldacre were jointly indicted in Trinity County for the murder of Dr. J.M. Gary. Otho Oldacre was not arrested. The venue was changed to the District Court of Walker by the court of its own motion, because appellant was related to numerous prominent and influential citizens in Trinity County, and this would preclude the State securing a fair trial.
Appellant filed a motion to dismiss the case in Walker County because the venue was changed, and the District Court of Walker County had no jurisdiction to try it. In his motion he alleges that the indictment charged that said offense was committed by Wright Terry, Howard Magee and Otho Oldacre; that said cause was entitled by the indictment, "State of Texas v. Wright Terry, Howard Magee and Otho Oldacre, defendants," and was numbered 1981 on the docket of the District Court of Trinity County; that there is nothing to show that these defendants, Wright Terry and Howard Magee, or either of them, severed from Otho Oldacre, or that any disposition was ever made of said case pending against said Oldacre, or that such a case as the one at bar ever existed in Trinity County, or was ever transferred to Walker County from Trinity County. *Page 270
The district attorney controverted appellant's motion to dismiss, alleging that the indictment is one and the same as that found in Trinity County, and that Otho Oldacre has never been arrested. This last statement is sworn to by the sheriff of Trinity County. It seems that appellant's motion is predicated solely upon the contention that the case was not transferred so far as Otho Oldacre was concerned. There is no insistence to the effect that it is not one and the same indictment as that found by the grand jury of Trinity County. The judgment of the court changing the venue from Trinity to Walker County shows that Wright Terry and Howard Magee were then in custody. The court did not err in refusing to sustain the motion to dismiss the indictment. It appears that it had been properly transferred to Walker County. The mere fact that there was no transfer so far as Otho Oldacre was concerned, would not vitiate the order changing the venue. In Stevens v. State, 42 Tex.Crim. Rep., we held that the failure to transfer the case, so far as a part of the codefendants were concerned, would not invalidate the transfer as to the others. It appears by the first bill of exceptions that all the papers relating to the case of the State of Texas v. Wright Terry and Howard Magee were duly transferred to the District Court of Walker County, and are the identical indictment and other papers on file herein.
Appellant made a motion for severance, and asked the court to place Howard Magee on trial first. The motion is embodied in a bill of exceptions, and is substantially as follows: Appellant asked that Howard Magee be placed on trial in cause No. 6309, then pending, and that this defendant be not compelled to go to trial before the trial of said cause No. 6309. The court overruled the motion. Attached to the bill is the following explanation: "That Howard Magee had been tried in cause No. 6308, in which defendant Wright Terry was tried, charged with the murder of J.M. Gary, and that said Magee had been acquitted of said offense on a former day of said term, and was then in custody of the sheriff of this county and in the jail of this county charged jointly with defendant with the murder of L.B. Eagle, in said cause No. 6309, and that defendant or his counsel made no application or request to have said Magee brought into court to testify in behalf of defendant in this cause (No. 6309), which request, if it had been made, would have been granted by the court and said Magee would have been allowed to testify in behalf of defendant in said cause. Further, on call of cause No. 6308, State of Texas v. Wright Terry et al., defendant Terry presented his motion for a severance in said case, and asked that Magee be put to trial first, in order that he might have the benefit of Magee's testimony in his behalf on his trial of said cause, which motion was sustained by the court and Magee tried and acquitted in said cause No. 6308." It appears that Magee and appellant were jointly indicted for the killing of Gary, and also jointly indicted for the killing of Eagle. Magee, upon proper motion by appellant, was first tried and acquitted for the killing of Gary. Now appellant makes a motion to have Magee *Page 271 also tried for the killing of Eagle, before he (appellant) should be tried at all.
The court erred in refusing this motion. Article 706 of the Code of Criminal Procedure, provides: "When two or more defendants are jointly prosecuted they may sever in the trial upon the request of either." Article 707 of the Code of Criminal Procedure reads: "Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted, and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties," etc. As we understand the bill of exceptions Magee and appellant were indicted for one and the same transaction; for though two different killings still it is one and the same transaction. The court should have granted the motion for severance, and placed Magee upon trial for the killing of Eagle, prior to the calling of appellant's case.
Appellant also complains that the court erred in permitting the witness Guy Wilbourn to testify about appellant procuring arms prior to the difficulty, and also that the court erred in permitting witness Earnest Mangum to testify to the purchase of ammunition. Also that the court erred in permitting witness Lige Pruitt to testify to appellant procuring arms. And also permitting witness C.A. Dean to testify that appellant shot into the Sylvan Hotel, and that he was seen immediately back of said hotel. He further complains that the court erred in permitting the witness G.W. Williams to testify about appellant shooting into the hotel. He also objects to the court forcing appellant to testify that on the night of the alleged killing of Dr. Gary he came to town without a gun; that he procured a gun from Wilbourn, and another from Pruitt, and ammunition from Mangum, and went to a little barn and fired into the Sylvan Hotel six or eight times, and that Howard Magee fired some shots into said hotel. All of this testimony appellant insists is not admissible on the ground that it is proof of extraneous crimes, in no way showing an intent on the part of appellant to kill Dr. Gary; nor was it a part of the res gestae; nor did it serve to identify defendant with the killing of Dr. Gary. We think this testimony was admissible. It appears that appellant Magee and Otho Oldacre were together some time near 12 o'clock at night, and after securing a shotgun and Winchesters, and buying ammunition, were seen immediately back of the Sylvan Hotel, where they had some heated words with deceased Eagle. A short while afterwards they fired their guns into the hotel, wounding an inmate thereof. Immediately thereafter Eagle left the hotel, and went a short distance for a physician. Appellant and his companions were sitting near the hotel in the dark. In about ten or fifteen minutes after said shooting, according to the testimony of appellant, Eagle returned, going in the direction of the *Page 272 hotel, accompanied by Dr. Gary. The State's testimony shows that Dr. Gary informed defendant and his companions who he was, and without any provocation, appellant shot Dr. Gary, and then shot Eagle, killing both. Appellant's theory is that he thought Eagle and Gary intended to hurt him, and that he shot in self-defense. The whole transaction appears to have occurred within a short while, and all the antecedent acts complained of in the above bills served strongly to illustrate and make manifest the cruelty and wanton motive prompting appellant and his companions, and are so interwoven and connected with the killing for which he was being tried, that they become part and parcel thereof, and res gestae of the transaction. Leeper Powell v. State, 29 Texas Crim. App., 69; McKinney v. State, 8 Texas Crim. App., 645. However, appellant insists that McAnally v. State, 7 Texas Ct. Rep., 398; Walker v. State, 7 Texas Ct. Rep., 394; Hill v. State, 7 Texas Ct. Rep., 389, sustain his contention. We do not think so. It is clearly held by this court that extraneous crimes illustrating the motive, intent and identity of appellant are admissible.
Appellant complains of the following portion of the court's charge: "You are instructed that the testimony admitted before you regarding the procurement of arms by defendant and other parties, the occurrence at the Sylvan Hotel before the procurement of arms, and the occurrence at said hotel after said procurement of arms, is admitted before you to be considered by you together with the other testimony in this case, and to be given such weight as, upon a consideration of the entire testimony, you may deem the same entitled to, as a circumstance in determining whether or not defendant had a motive at said time and place in killing J.M. Gary, deceased, and for no other purpose whatever, and under no circumstances will said testimony be considered by you as affecting the defendant's right of self-defense, if you shall believe that the defendant was acting in self-defense in the killing of said J.M. Gary at the time and place of said killing." This and similar charges complained of by appellant were clearly upon the weight of evidence, and the court erred in giving such charges. Walker v. State, 7 Texas Ct. Rep., 395; Hudson v. State, 28 Texas Crim. App., 324; Attaway v. State, 41 Tex.Crim. Rep., 55 S.W. Rep., 45. These authorities hold that it is not necessary to charge on motive. However, it does become the duty of the court, wherever extraneous crimes are introduced on a controverted question of intent, to limit the same to that purpose. For collation of authorities, see White's Ann. C.C.P., p. 529. But where another crime forms part and parcel of the motive and res gestae of the motive, it is not proper to charge on the same.
In this connection, appellant complains that the court erred in permitting the State to prove that Dr. Gary was a witness against appellant in another homicide. This evidence is admissible, if it should appear that said defendant knew said fact; but if knowledge is not brought home to defendant, then said testimony is not admissible. However, this can *Page 273 be done under the usual rules of evidence, either by positive or circumstantial testimony.
Appellant also complains that the court erred in refusing to charge on apparent danger. The court properly presented the law of actual attack, but failed to present the law of apparent danger. The testimony of appellant presents this issue, and it should have been so charged; that is, if deceased had made an attack upon appellant, or if appellant believed that he was about to make an attack on him, he would have the right of self-defense, as authorized by the laws of this State. Phillips v. State, 34 Tex.Crim. Rep.. We do not believe the court erred in failing to charge on manslaughter, as we find no evidence in the record presenting this issue.
We do not deem it necessary to review the other errors assigned. For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.