Appellant was convicted of the murder of Frank M. Wilkins, the death penalty assessed by the jury, and judgment was entered in accordance with the verdict.
The court charged the jury that “all murder committed with express; malice is murder in the first degree, and murder committed in the perpetration of robbery is also murder of the first degree.” This charge-was objected to because there was “no fact in evidence warranting the-submission of that issue, and the indictment not charging a murder-committed in the perpetration of robbery.” The indictment charged, the killing upon “express malice aforethought.”
While the evidence is circumstantial, yet it points conclusively to-the appellant as one of the parties who killed the deceased, and it is. equally apparent that the killing occurred for the purpose of robbery. “Murder in the perpetration of robbery is per se murder of the first-degree.” Gonzales v. The State, 19 Texas Ct. App, 400; Sharp v. The State, 17 Texas Ct. App., 486; Giles v. The State, 23 Texas Ct. App., 281; Willson’s Crim. Stats., secs. 1033, 1039.
Under an indictment charging the killing upon express malice only it has been repeatedly held that proof was admissible to show that it. was committed in the perpetration of robbery, rape, arson, or burglarly, or that the defendant’s motive in perpetrating the murder was, to commit either of the crimes above mentioned, and the instructions to the jury should be commensurate with the case made by the indictment and the facts in proof. Roach v. The State, 8 Texas Ct. App., 478; Reyes v. The State, 10 Texas Ct. App., 1; Sharp v. The State, 17 Texas Ct. App., 486; Gonzales v. The State, 19 Texas Ct. App., 394; Washington v. The State, 25 Texas Ct. App., 387; Giles v. The State,. 23 Texas Ct. App., 281.
*613The evidence manifests the fact that the deceased and one Walton were murdered in a storehouse in which their business was carried on. Walton was shot in the head several times while seated at the table eating, and Wilkins was shot in the head and other parts of the body-while he was making some entries in a small account book against the defendant and two other Mexicans, which entries were never completed by him. Wilkins was found in the house “lying upon his back with six bullet holes in his head and body, and the flesh of his face powder burned. In his left hand was a small account book, and in' his right hand was a small pipe with the bowl resting in the palm of his hand, and also a pencil held between his thumb and fingers.” In this book were the entries charging the defendant and other two Mexicans with .some items they had just bought. The last item had not been fully charged and entered, but the deceased was making the entry at the ■time he was shot. All three of the Mexicans whose names appear of entry in the small account book were employes on the ranch of deceased and others, and were employed to assist in attending some flocks ■of sheep belonging to the ranch. Appellant was, a few days subsequent to the killing, arrested for this, murder and placed in jail in Mexico, to which country he had escaped. After being placed in jail the pistol belonging to the deceased Wilkins was taken from him. Walton’s pistol was also taken at the time of the killing. The three Mexicans disappeared the day of the killing and took five horses from the ranch with them into Mexico. The property ascertained to have been taken by these parties was valued at $300. After killing the parties their bodies were left lying on the floor of the house where killed and the door carefully locked. The evidence shows a cold-blooded killing, and in so far as the record before us tends to show said killing occurred for the purpose of robbery. There was no error in the charge as given. (Authorities already cited.)
Appellant testified in his own behalf and was cross-examined by the State. Afterward during the trial the State was permitted to recall the appellant and further examine him. Appellant objected to this recall but the objection was overruled. The objection urged was that the appellant could not be compelled to testify except “at his own instance.”
Under our Bill of Bights the accused “shall not be compelled to .give evidence against himself.” Bill of Bights, sec. 10.
By an act of the Legislature of 1887 a defendant is permitted to testify in his own behalf. This is a privilege granted him theretofore denied by our statutes. As long as he remains off the witness stand the State can not call him to testify in his case, but when he once assumes the attitude of á witness in the case he stands in the same relation to the case as any other witness and subject to the same rules as other witnesses.
*614By testifying a defendant waives the protection thrown around him as such defendant by the Bill of Rights and the law and assumes the attitude, place, and liabilities attaching to him as a witness the same as other witnesses. Quintana v. The State, 29 Texas Ct. App., 401; Whart. Crim. Ev., 9 ed., pp. 429, 430, 434, and notes thereto. In this ruling of the court there was no error.
The appellant has had, in so far as the record shows, a fair and an impartial trial. The evidence, while circumstantial, is strong and fully conclusive of appellant’s guilt of the homicide. The killing was evidently a cold-blooded and cruel assassination, and manifests clearly that the deceased was shot when he was not thinking of harm or danger.
We see no reason why the judgment should be reversed, and it is therefore affirmed.
Affirmed.
Judges all present and concurring.