¶1ON appellant’s motion for rehearing.
¶2We are favored with masterful briefs and arguments in support of appellant’s motion for rehearing, including amicus brief by an eminent and able Texas lawyer addressed to the question of privileged communications between attorney and client.
¶3Other grounds for rehearing urged are (1) the refusal of *196an affirmative charge requested by appellant on temporary insanity growing out of his domestic trouble, and (2) the failure of the trial court to submit the question to the jury as to whether the witness Menchaca was an accomplice.
¶4These contentions will be considered in reverse of the order in which they are above stated.
¶5Appellant does not now question the correctness of our holding that the mere filing of a complaint against Menchaca in connection with the murder of Mrs. Clark did not make him an accomplice as a matter of law. He insists, however, that the court erred in failing to submit to the jury the question of whether Menchaca was an accomplice.
¶6The charge was not objected to for the failure to submit the issue to the jury, but because the court declined to instruct the jury that Menchaca was an accomplice as a matter of law. But without regard to the sufficiency of the objection, we are unable to agree that the failure of the trial court to submit to the jury the question of whether Menchaca was an accomplice constitutes reversible error.
¶7We recognize the rule advanced by appellant to the effect that where one who has taken part in the commission of an offense endeavors by his own testimony to show his innocent intention, his relation to the crime becomes a question of fact for the jury. But as we view the testimony there is no evidence to show that Menchaca took part in the murder, either as a principal, an accomplice or an accessory. There was therefore no fact situation showing a guilty connection from which Menchaca was called upon to extricate himself by his testimony.
¶8Menchaca was merely the personal attendant or companion of appellant on the night in question, in the capacity of an employee of appellant and of the hotel owned in part by appellant. He was assigned by the hotel manager and by appellant to that role. There is no testimony to show that he knew that the offense of murder was contemplated, planned or executed by appellant. Nor is it shown that he became a party by any act or conduct after the killing. The fact that he remained silent when first questioned as to the whereabouts and activity of appellant on the night in question did not constitute him an accessory.
¶9As to the charge on insanity, the charge as presented to *197appellant’s counsel contained rather full instructions and definitions on insanity as a defense to crime. Appellant objected to these instructions as being incomplete and requested that in lieu thereof the court substitute his requested charge No. 1.
¶10An examination of appellant’s requested charge No. 1 reveals that it does not contain the instruction on temporary insanity “resulting from his worry over his domestic affairs” which is the crux of his present complaint.
¶11Appellant’s requested charge No. 4 was given to the jury and reads as follows:
¶12“You are further instructed as a part of the law in this case, that there is no limited time when insanity can exist in the mind of a person which renders said person excusable from an unlawful act, and, so in this case, although you may find and believe from the evidence that the defendant was sane prior to the homicide and sane after the homicide, yet if you believe from all the evidence that the defendant was insane at the very time he killed Laverne Clark, if he did, as the term insanity is defined to you in the Court’s main charge, you will acquit him on the grounds of insanity.
¶13“In passing on the question as to whether he was insane at the very time he shot and killed 'Laverne Clark, if he did, you may take into consideration the acts and conduct of the defendant before the homicide, at the time of the homicide and after the homicide, as pointed out in the Court’s main charge.”
¶14The contention is advanced that this conviction should be reversed because of the refusal of the court to give appellant’s requested charge No. 2, reading as follows:
¶15“You are further instructed as a part of the law in this case, that there is no limited time when insanity should exist in the mind of a person to excuse them from an unlawful act, and, so in this case, if you find and believe by a preponderance of the evidence that although the defendant was sane immediately prior to the homicide and sane immediately after the homicide but was insane, from any knowledge the defendant might have had with reference to the relationship between Laverne Clark and a man or men, if any, or for any other Reason, as the term insanity is defined in the Court’s main charge, at the time he shot and killed Laverne Clark, if he did, then you will acquit him on the grounds of insanity.” ■
¶16*198We find no exception to the refusal of the requested charges.
¶17We remain convinced that the court amply protected appellant’s rights when he gave his requested charge No. 4 instructing the jury to acquit if they believed “from all of the evidence that the defendant was insane at the very time of the killing, even though they found him to have been sane prior to and after the homicide.”
¶18We are not impressed with the argument regarding the instruction found elsewhere in the charge regarding temporary insanity from the recent voluntary use of intoxicating liquor.
¶19There are no exceptions to the charge upon the ground that it was “a conglomeration and was not a clear and affirmative charge” nor that it was vague or indefinite or “calculated to confuse and mislead the jury,” which are the complaints now advanced. In fact we find no objection to the submission of temporary insanity caused by the use of intoxicating liquor in mitigation of the punishment and for ought we know the instruction may have been given at appellant’s suggestion or request. At any rate, the instructions are separate and distinct, and not confusing.
¶20The sole ground of objection to the court’s charge on insanity was that it was incomplete and failed to instruct the jury that insanity may be continuous or may be “periodical.” The objections might be disposed of because it is not shown that they were timely presented or that an exception was reserved. The record shows that defendant “excepts to the court’s main charge” and bears the notation “Overruled,” over the signature of the judge, but no exception appears to the court’s action in overruling the objections.
¶21Because of the punishment assessed we have, both here and on original submission, considered and discussed the contentions raised. However we direct attention to the fact that the law regarding the reserving of exceptions applies to all appeals to this court, including convictions carrying the death penalty.
¶22We remain convinced that no reversible error is shown in the court’s instructions to the jury.
¶23As to the testimony of the telephone operator regarding the conversation between appellant and Mr! Martin, the con*199versation is set forth in full in our original opinion. Our holding as to the admissibility of the testimony of the operator is not to be considered as authority except in comparable fact situations.
¶24For the purpose of this opinion we assume that the Dallas voice was that of Mr. Martin, appellant’s attorney. If it was not appellant’s attorney the conversation was not privileged.
¶25It is in the interest of public justice that the client be able to make a full disclosure to his attorney of all facts that are material to his defense or that go to substantiate his claim. The purpose of the privilege is to encourage such disclosure of the facts. But the interests of public justice further require that no shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit a crime.
¶26We think this latter rule must extend to one who, having committed a crime, seeks or takes counsel as to how he shall escape arrest and punishment, such as advice regarding the destruction or disposition of the murder weapon or of the body following a murder.
¶27One who knowing that an offense has been committed conceals the offender or aids him to evade arrest or trial becomes an accessory. The fact that the aider may be a member of the bar and the attorney for the offender will not prevent his becoming an accessory.
¶28Art. 77 P.C. defining an accessory contains the exception “One who aids an offender in making and preparing his defense at law” is not an accessory.
¶29The conversation as testified to by the telephone operator is not within the exception found in Art. 77 P.C. When the Dallas voice advised appellant to “get rid of the weapon” (which advice the evidence shows was followed) such aid cannot be said to constitute aid “in making and preparing his defense at law.” It was aid to the perpetrator of the crime “in order that he may evade an arrest and trial.”
¶30Is such a conversation privileged as a communication between attorney and client?
¶31*200If the adviser had been called to testify as to the conversation, would it not have been more appropriate for him to claim his privilege against self-incrimination rather than that the communication was privileged because it was between attorney and client?
¶32Appellant, when he conversed with Mr. Martin, was not under arrest nor was he charged with a crime. He had just inflicted mortal wounds on his former wife and apparently had shot her daughter. Mr. Martin had acted as his attorney in the divorce suit which had been tried that day and had secured a satisfactory property settlement. Appellant called him and told him that he had gone to extremes and had killed “her,” not “the driver.” Mr. Martin appeared to understand these references and told appellant to get rid of “the weapon.”
¶33We are unwilling to subscribe to the theory that such counsel and advice should be privileged because of the attorney-client relationship which existed between the parties in the divorce suit. We think, on the other hand, that the conversation was admissible as not within the realm of legitimate professional counsel and employment.
¶34The rule of public policy which calls for the privileged character of the communication between attorney and client, we think, demands that the rule be confined to the legitimate course of professional employment. It cannot consistent with the high purpose and policy supporting the rule be here applied.
¶35The murder weapon was not found. The evidence indicates that appellant disposed of it as advised in the telephone conversation. Such advice or counsel was not such as merits protection because given by an attorney. It was not in the legitimate course of profesisonal employment in making or preparing a defense at law.
¶36Nothing is found in the record to indicate that appellant sought any advice from Mr. Martin other than that given in the conversation testified to by the telephone operator. We are not therefore dealing with a situation where the accused sought legitimate advice from his attorney in preparing his legal defense.
¶37Some of the citations and quotations have been deleted from our original opinion.
¶38*201We remain convinced that the appeal was properly disposed of on original submission.
¶39Appellant’s motion for rehearing is overruled.