¶11. It was developed in the trial of the case that the court did not err in overruling the defendant’s application for a continuance. All the material facts which defendant alleged he expected to prove by the witnesses Jo well, Williams and Kent were sufficiently proved by the testimony of other witnesses who testified on the trial, and defendant was therefore not injured by the absence of those witnesses. As to the witness Pritchard, he appeared during the trial, and the defend*425ant, though offered the opportunity, declined to place him on the stand.
¶22. There was no error in overruling defendant’s motion to quash the service upon him of the copy of the indictment. It is objected that the writ accompanying the copy of the indictment served upon defendant is, not styled as required by law. (Const., Art. 5., sec. 12.) We think the objection is not supported by an inspection of the writ, and that the writ is in all respects sufficient. (Code Crim. Proc., Art. 458.)
¶33. Defendant was not jointly indicted with Taylor and Munnerlyn, and he therefore had no legal right to demand that they should be first tried. It was not error to overrule his motion asking that they be placed first upon trial. (Rucker v. The State, 7 Texas Ct. App., 549; Shelton v. The State, at present term.)
¶44. We find no error in any of the rulings of the court upon any of the questions which arose in the formation of the jury, as to the summoning of jurors, or their qualifications. We have examined the several bills of exception relating to these rulings of the court, and our judgment is that the court committed no error with respect to the jury.
¶55. It was not error to refuse to permit defendant to ask the witness J. H. Brown the question stated in the bill of exceptions. It had reference to an immaterial matter, and, was wholly irrelevant, and not even admissible for the purpose of laying a basis to impeach the witness.
¶66. It was not error to permit the witness J. H. Brown to testify as a witness in behalf of the State. That he was under indictment for an assault upon defendant with intent to murder him, the alleged act being a part ’ of the same transaction for which defendant was upon trial, did not render him an incompetent witness. (Code Crim. Proc., Art. 730.) It might affect his credibility, but not his competency.
¶77. It was not error to reject the testimony of the witness Gus Semo that the constable had dispossessed the defendant of the school house at the suit of J. H. Brown, nor was it error to reject the record and judgment in the case of The State of Texas v. J. H. Brown, wherein Brown appears to have been convicted of the offense of defacing the school house. This proposed evidence, we think, was irrelevant, and if it tended to prove anything at all bearing upon any issue in the case, that tendency would, it seems to us, be unfavorable to the defendant. It might perhaps have been admissible if it had been offered by *426the State for the purpose of showing malice on the part of defendant in killing Rogers, as the homicide of Rogers was unquestionably the result of a feud in relation to the school house.
¶88. There was no error in rejecting the deed offered in evidence by defendant. It was objected to by the district attorney because it had not been filed in the cause three days prior to the trial, and notice of such filing given, as required by law. (Rev. Stats., Art. 2257.) This objection was well taken. It is provided that “the rules of evidence prescribed by the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions,” etc. (Code Crim. Proc., Art. 726; Johnson v. The State, 9 Texas Ct. App., 249.) In a civil suit, a deed is not per se admissible in evidence. To render it admissible it must be recorded, and, after record thereof, it must be filed in the cause in which it is to be used as evidence at least three days before the trial of the cause, and notice of such filing given to the opposite party; or it may be rendered admissible by proving its execution in the manner required at common law. (Wiggins v. Fleishel, 50 Texas, 57.)
¶99. There was no error in causing the jury to retire from the court room while argument was being heard by the court upon questions as to the admissibility of evidence offered by the defendant. These were questions of law with which the jury had no concern, and it was very proper that the jury should be removed from the court room during the discussion of the same.
¶1010. It was not error to reject the record showing an appropriation of money by Young county for the building of Flat Rock school house. This proposed evidence was, in our opinion, irrelevant and immaterial, and could have had no legitimate effect upon any issue in the case.
¶1111. Ro exceptions were taken to the charge of the court, nor is it complained of in the motion for new trial or assignment of errors, except in one particular, and that is that it fails to instruct the jury that they were the exclusive judges of the credibility of the witnesses. We find the charge of the court upon this subject as follows: “You, gentlemen of the jury, are the exclusive judges of the facts of the case and the weight of the testimony.” This is very nearly the language used by the law, and we think is sufficient. (Code Crim. Proc., Art. 728.) We have carefully examined the charge of the court, and we find no error in it. It is full, clear and fair, and presents all the law applicable to every phase of the case as made by the evidence.
¶12*42712. As to the requested instructions which the court refused, we think that in so far as the same were correct and applicable to the evidence, they were substantially embraced in the charge of the court given to the jury. Some of the requested charges we do not think contained correct propositions of law, and all of them, in our opinion, were properly refused.
¶1313. We have examined carefully the voluminous record in this case, and each of the numerous assignments of error and bills of exceptions presented by defendant, and we find no error for which, in our judgment, the conviction should be set aside. There was much conflict in the evidence, and the credibility of witnesses on both sides was attacked. Twenty-one witnesses testified in behalf of the State, and thirty-four in behalf of the defendant. It was the peculiar and sole province of the jury, who had these witnesses before them, to sift and weigh their testimony, and pass upon its credibility. There was ample evidence, if believed by the jury to be true, to establish the defendant’s guilt of murder of the second degree. Evidently the jury believed the' evidence which established the defendant’s guilt, and their finding is conclusive upon this court.
¶14Finding no error in the judgment it is affirmed.
¶15Affirmed.
¶16Opinion delivered June 13, 1883.