It is charged in the indictment that the defendant and one Brown “acted together" in murdering the deceased. The court instructed the jury that “if the defendant, acting by himself, or acting together with one W. R. Brown," etc., killed the deceased, etc. Defendant except.ed to this instruction upon the ground that the indictment did not charge him severally with the commission of the murder, but charged that said murder was committed jointly by Brown and himself, and that therefore said instruction was inapplicable and unwarranted. We do not regard the exception as well grounded. If the indictment had simply charged that the defendant and Brown committed the murder, unquestionably a conviction under it would be sustained upon proof that he alone committed the murder, or that he acted together as a principal with Brown or with anyone else in its commission. Davis v. The State, 3 Texas Ct. App., 91; Gladden v. The State, 2 Texas Ct. App., 508; Williams v. The State, 42 Texas, 392. The allegation that the defendant and Brown acted together in the commission of the murder we regard as mere surplusage, not descriptive of the offense, not material in any respect, and as neither enlarging or restricting the responsibility or rights of the defendant. We are clearly of the opinion that under the indictment the defendant might legally be convicted of the murder, not only upon proof showing that he acted together with Brown in its commission, but upon proof showing that he' committed it alone, without Brown in any manner being connected with its commission.
Another portion of the charge of the court was excepted to by the defendant on the grounds that it was unwarranted by the evidence and was upon the weight of the evidence. The portion of the charge referred to reads as follows: “The mere presence of a party at the time and place where an offense is committed does not constitute such party a principal; he must be present at the time and place with a knowledge of and participation in the offense. Of this the jury are to judge from the surrounding circumstances in proof, such as companionship of the parties and the conduct of defendant at, before, and after the commission of the offense." We think this paragraph of the charge was fully warranted by the evidence, and we are furthermore of the opinion that it is not upon the weight of evidence. To instruct the jury that a certain fact may be inferred upon proof of other facts without assuming that such other facts have been proved, is not always a charge upon the weight of evidence within'the meaning of the rule. Sharpe v. The State, 17 Texas Ct. App., 486. Considered with reference to the evidence in this case we think said paragraph of the charge is correct.
*41Another paragraph of the charge was excepted to by the defendant. It reads as follows: “If yon do not believe that defendant was present at the time of the killing you will acquit him.” . We see no error in this paragraph when it is considered in connection with the context and with other portions of the charge. The defense of alibi was not presented by the evidence any further than that no eye-witness testified that defendant was present at the time and place of the homicide. It was not shown by the defendant, or attempted to be shown, that he was at another place at the time of the homicide. There was no evidence demanding a charge as to the defense of alibi, and the instruction above quoted was more favorable to the defendant than was absolutely required.
Considering the charge of the court as a whole, we regard it as free of error. It is a clear, comprehensive, and correct statement of the principles of law applicable to the facts of the ease.
One of the grounds of defendant’s motion for a new trial is certain improper remarks made by counsel for the State in the closing address to the jury. There was no exception made to said remarks at the time they were made, and objections thereto are presented for the first time in the motion for a new trial. The objections come too late and can not be considered. It is only by proper bill of exception that such objections can be availed of on appeal, unless perhaps where it be clearly made to appear that the defendant has suffered injury from such improper remarks, .and it is not so made to appear in this instance. Mason v. The State, 15 Texas Ct. App., 534; Jackson v. The State, 18 Texas Ct. App., 586.
There are certain papers in the record relating to the trial and acquittal of Brown subsequent to the conviction of the defendant, and defendant claims that Brown’s testimony in his behalf is material, etc. These papers are not properly a part of the record, and we are aware of no rule of practice which would warrant us in giving them consideration.
But one other question is presented, and that is the sufficiency of the evidence to support the conviction. While the evidence is circumstantial, we think it is very cogent and conclusive of the defendant’s guilt. To our minds it shows, beyond any reasonable doubt, that he participated in the murder of the deceased—a murder which the evidence in this case shows was a cowardly and deliberate assassination.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.