Appellant was indicted in the District Court of Bowie County for the murder of one Mike Hackett.
In substance, it was alleged in the indictment that the murder was committed by appellant in the perpetration of - a railway train robbery committed by him on the 9th day of June, 1890, by which, in the de- • railing the cars for the purpose of the robbery, the said Mike Hackett was killed. It is also charged in the indictment that the said defendant, after the train was derailed, robbed one Heblett, the express messenger on the train, of certain property and money in his possession, which was being transported by the express company for certain parties whose names are mentioned.
A motion was made to quash the indictment for uncertainty and insufficiency. This motion was overruled, and we think rightly, the indictment being sufficient to charge the offense of murder in the perpetration of robbery.
The record before us is a very voluminous one, containing more than two hundred pages, most of which is taken up by the statement of facts. There are only three bills of exception reserved to matters transpiring at the trial.
The first bill was to the competency of juror Murphy. The court’s explanation to this bill of exceptions shows that the juror answered the *368questions propounded to him on his voir dire, establishing his competency fully, and even if such had not been the case, it is not made to appear in the record that defendant exhausted his peremptory challenges before the jury was completed, and such being the case, he would have had no right to complain, even if the juror had been incompetent.
Defendant’s second bill of exceptions was reserved to questions asked the witness Mrs. McDaniels by the district attorney. One McDaniels, husband of this witness, had been previously tried and convicted of this same offense, he being a party to the robbery. His wife, when put on the stand by the defendant, was asked by the district attorney, on cross-examination, if she knew the result of the trial of her husband, and she answered she did; whereupon the district attorney further asked her what was the result of the said trial, to which defendant objected, and the court sustained the objection, and the witness was not allowed to answer this last question. Under the circumstances developed we can not see that any error or prejudice to the defendant’s rights was committed, the court having sustained defendant’s objection as soon as it was interposed, and the witness not being allowed to answer the question. We can not see how the appellant could reasonably complain.
Defendant’s third bill of exceptions was taken to remarks used by the district attorney in his closing argument to the jury. The court explains this bill of exceptions by stating that what the district attorney did say was in answer to remarks made by counsel for defendant to the jury, to the effect that the defendant was on trial before strangers and among strangers; to which the district attorney replied, after repeating the remarks made by defendant’s counsel, that if the defendant was tried before strangers the State was not responsible for it, because the defendant had removed his case from Bowie County, where he was known, to Cass County, and that the record would show it. This explanation by the district judge shows that there was no error in the matter complained of. The district attorney had the right' to reply to defendant’s counsel, and show why it was that the defendant was being tried by strangers.
The charge of the court in this case presented the law correctly on all the legitimate issues raised by the evidence, and there was no error in refusing the special requested instructions of defendant, which were refused.
One of these special instructions was a request of the court to charge upon murder in the second degree. The court did not err in refusing so to charge, because all the evidence showed that the murder was committed in the perpetration of robbery, and a murder so committed is expressly made by our statute per se murder in the first degree. Penal Code, art. 606.
*369The evidence in the case does not admit of a shadow of doubt, in our opinion, of this appellant’s guilt, and, furthermore, shows that he was the instigator and prime mover of the crime which was committed. Ho error is made to appear which requires a reversal of the judgment, and it is therefore affirmed.
Affirmed.
Davidson, J., being disqualified, did not sit in this case.