¶1Appellant was convicted of murder in the first degree and his punishment assessed at life imprisonment in the penitentiary.
¶2Between twelve and one o'clock at night on November 5, 1906, in Rio Grande City, in Starr County, Judge Stanley Welch, district judge of that district, was assassinated in his room. The house in which he slept consisted of two rooms. Judge Welch occupied one and the district attorney the other. The homicide occurred on the night preceding an election. Judge Welch was at said city holding court at the time. Appellant and Jose Sandoval approached the window of Judge Welch's room where he was sleeping and remained standing there close together side by side for a short period of time. One of the two fired a shot into the house through the window where Judge Welch's body was found. He was shot from that point through the back. The evidence shows only one shot was fired in that neighborhood that night. The evidence shows that the wound that killed Judge Welch was fired from the window as indicated. Judge Welch's body was within four or five feet of the window inside of the room in the direction from which the shot was fired. Only one bullet hit the body. Cayetano Pena and his wife, Jesusa Gonzales de Pena, are the two witnesses who testified that they saw appellant and his codefendant fire the shot as above detailed. They furthermore testify they were sitting at their home some 120 feet away from Judge Welch's room and early in the night appellant and his codefendant passed by their house and they recognized them. Sometime thereafter, while they were still sitting, one in the door and the other on the bed looking out of the door in the direction of Judge Welch's window, they saw appellant and his co-companion approach and fire the fatal shot. They then saw them run away hurriedly from the window. They swore positively that it was appellant and his codefendant. If the testimony of the witnesses is to be believed as disclosed by this record the motive for the killing was political and appellant and his codefendant were the hired assassins of political enemies of Judge Welch, since there is nothing to suggest that appellant and his codefendant had any personal animus against the judge. No one knew that Judge Welch was killed until early the next morning, when the district attorney entered the room and found that he had been shot as suggested. Alarm was given, various parties gathered in, and after continued search appellant was sometime subsequently arrested in Old Mexico and brought back to this State on a proper requisition and tried for this homicide. The jury gave him murder in the first degree with life imprisonment. Pena and his wife testified that at the time that appellant and his codefendant passed their house, Judge Welch was sitting just inside of the east door of his room and there was a light burning in the room. Appellant and his codefendant passed on going to the north of the house in which *149 witnesses lived, then turned to the right and disappeared. Sometime after these parties passed, Judge Welch's light went out and his door was closed. About an hour after they passed the first time, the same two parties, coming from the same direction as before, walked up to the east window of the south room of Judge Welch's house and fired a shot. They did not know which fired the shot. There are other circumstances in the record that we do not deem necessary at this time to rehearse.
¶3Appellant's first ground of his motion for a new trial complains that the court erred in failing to charge on circumstantial evidence. To support his contention he cites us to the following authorities: Early v. State, 50 Tex. Crim. 344, 97 S.W. Rep., 82; Guerrero v. State, 46 Tex. Crim. 445, 80 S.W. Rep., 1001; Trejo v. State, 45 Tex. Crim. 127, 74 S.W. Rep., 546; Poston v. State, 35 S.W. Rep., 656; Leftwich v. State, 34 Tex.Crim. Rep., 31 S.W. Rep., 385; Polanka v. State, 33 Tex.Crim. Rep., 28 S.W. Rep., 541; Montgomery v. State, 20 S.W. Rep., 926; Deaton v. State, 13 S.W. Rep., 1009; Puryear v. State, 28 Texas Crim. App., 73, 11 S.W. Rep., 929; Beason v. State, 43 Tex.Crim. Rep., 67 S.W. Rep., 96. The case of Puryear v. State, supra, and other authorities noted by appellant do not sustain his contention. There is a long line of authorities in this State, holding that where the defendant is in such juxtaposition to the crime committed, as the facts in this case show, that a charge upon circumstantial evidence is not required.
¶4The latest case that our attention has been called to, sustaining this modification, is the case of Dobbs v. State,51 Tex. Crim. 629. In discussing the question as to whether the issue of circumstantial evidence was presented in that case, we used this language: "The State's testimony shows that a witness a couple of hundred yards away heard a gun fire at the spot where deceased was subsequently found, and in a few moments saw appellant and his son (his son having a gun) coming from the direction of where the deceased was subsequently found. The witness walked up the road in company with another witness and discovered deceased lying on the ground shot, and these facts place appellant in such juxtaposition of the crime, of themselves from the State's standpoint, so as to preclude the issue of circumstantial evidence." So we have in this case the parties thoroughly identified as being the parties who fired the shot that killed the deceased. There was no one else in the room or that slept in the room. So we hold that the court did not err in failing to charge on the issue of circumstantial evidence. In passing upon this case on the question of habeas corpus as reported in 53 Tex.Crim. Rep., 110 S.W. Rep., 898, we there stated that "The testimony for the State is positive and unequivocal that relator, in company with another, killed the deceased by shooting him through a window at night," and we *150 meant by that statement evidently that the facts placed appellant in such juxtaposition to the crime as to exclude any other issue than that of positive testimony. The State in its brief, in addition to the Dobbs case, supra, cites as also pertinently bearing on this question the following authorities: Keith v. State, 50 Tex.Crim. Rep.; Kidwell v. State, 35 Tex. Crim. 264; Hollan v. State, 45 Tex.Crim. Rep.; Beason v. State, 43 Tex.Crim. Rep.; Polk v. State, 35 Tex. Crim. 495; Adams v. State, 34 Tex.Crim. Rep.; Baldwin v. State, 31 Tex.Crim. Rep.; Crows v. State, 34 Tex. Crim. 533; Bennett v. State, 32 Tex.Crim. Rep.; Hardin v. State, 8 Texas Crim. App., 653.
¶5The fourth assignment of error complains of the following charge: "Do the facts and circumstances in this case show such a general disregard of human life as necessarily includes the formed design against the life of the person slain. If so, the killing, if it amounted to murder, will be upon express malice." Appellant insists that said charge is erroneous, because it instructed the jury as to a phase of the law and as to an issue not raised by the evidence in this case, and for the further reason that said portion of the court's charge was calculated to lead the jury to believe, and did lead the jury to believe, that in the opinion of the court this defendant was a dangerous and reckless person. This is simply an illustration used by the court to get the jury to understand what murder in the first degree is. Furthermore, the circumstances surrounding this case to our minds, do not show that the charge was not altogether pertinent to the facts. There is no error in the charge.
¶6Appellant insists the court erred in refusing the following charge: "That there is no evidence before you showing or tending to show that the defendant ever saw or knew Jose Sandoval prior to and at the time of eleven o'clock p.m. of November 5, 1906; therefore, you are instructed that any act, acts, conduct or conversation of or with said Sandoval prior to said time of eleven o'clock p.m. of November 5, 1906, can not be considered by you in this case as in any way tending to criminate the defendant on trial herein." And in this connection appellant further complains that the court erred in failing to give the following charge: "That the testimony of Rufino Clark, Francisco Martinez and Rafael Moreno was admitted before you upon the statement of the State's counsel that the materiality thereof would be subsequently shown, but inasmuch as this has not been done, the court now instructs you that you will not consider for any purpose the evidence of either or all of said witnesses as to the whereabouts of Jose Sandoval, or his statements, acts or conduct, or as to the statements made to him by Gregorio Duffy or any other person, or to any message sent to him or received by him on said night (if they were sent or received by *151 him); said evidence must not be considered by you for any purpose whatever; and it is your duty as jurors to wholly disregard the same, exclude it from your minds, and try this case as though you had never heard it." The record shows that the court permitted Rafael Moreno to testify for the State that he was overtaken on the night of November 5, 1906, by Jose Sandoval, while riding on the road from Roma to Rio Grande City, at or about nine p.m., and that he rode with said Sandoval about a league in the direction of Rio Grande City; that he conversed with Sandoval, and that said Sandoval then left the witness and rode on ahead toward Rio Grande City. It is shown by Rufino Clark that he saw Sandoval at a ranch five miles below Roma, in Starr County, and on the road leading from Roma to Rio Grande City. This testimony was entirely germane and pertinent. The evidence for the State shows that the parties were acting together in the commission of this murder, and any evidence going to show that they were present or were probably present, one or each of them, or both, was germane and pertinent, and it follows, therefore, that the court did not err in refusing the above quoted charges. Where two or more parties act together any acts or declarations prior to the consummation of a crime that will illustrate the purpose and animus or probable co-operation of the parties in the commission of the crime, are admissible. The sheer fact that there was no testimony showing that the parties were acquainted prior to the night of the homicide, does not show that they did not act together. If they met for the first time on the night of the homicide, the testimony that he was going to where he met appellant would be clearly admissible. It would be only a circumstance to be argued to the jury to indicate that they did not.
¶7The trial court permitted the district attorney, John I. Kleiber, to testify for the State that while he was in the city of Mexico, he saw this defendant incarcerated in the general jail in said city. Appellant objected to this testimony as shown by bill of exception No. 4 on the ground that same was irrelevant, immaterial and prejudicial to the rights of this defendant; and upon the further ground that it was not competent nor proper for the State to prove that this defendant had been in jail for this or any other offense. It was proper for the court to permit this testimony. It is a circumstance to show flight, or at any rate it could not prejudice the rights of appellant to prove that he was in jail charged with this crime.
¶8The 12th error complained of was the refusal of the court to give special charge No. 3 asked by appellant, which is as follows: "Gentlemen of the jury: You are instructed at the request of the defendant as follows, to wit: That the fact (if it is a fact) that the defendant was extradited from the Republic of Mexico, or the fact that he did or did not undertake to defeat said extradition by *152 legal process or otherwise, can not be considered by you in this case, as in any way tending to incriminate this defendant. Every citizen has a right to appear before the proper officials and defend himself in an extradition proceeding, and the fact that he does so is not and can not be considered by you, as a fact or circumstance showing or tending to show his guilt or innocence, as to the crime with which he stands charged." It is contended that the court was in error in refusing this, because evidence was introduced to show that appellant while in the city of Mexico fought the extradition from the United States and resisted being returned from the asylum country. He asserts in the statement in his brief that exception was reserved to this testimony in his bill of exceptions No. 3 found on pages 31 and 32 of the transcript. An inspection of that bill does not verify this contention. There is nothing in the bill indicating that appellant fought extradition. The exception was reserved to the statement of district attorney Kleiber that he went to the city of Mexico on business connected with extradition of the defendant and there the bill ends so far as this phase of the testimony is concerned. It may be conceded, so far as this charge is concerned, that testimony was introduced that appellant fought the extradition, but in order to take advantage of this the defendant must object to the introduction of this testimony, and if the court overruled the objection appellant should have properly reserved his bill of exceptions, but this was not done, nor was a motion made to exclude the testimony subsequently. We find no bill of exception was reserved, but appellant seeks to use a special charge to meet his failure to except to the introduction of it. This can not be done. A charge can not be used to serve the office of a bill of exception in regard to the admission or rejection of evidence. Pippin v. State, 9 Texas Crim. App., 269; Thomas v. State, 16 Texas Crim. App., 535; Capps v. State, 40 Tex.Crim. Rep.; Nall v. Gates, 20 Tex. 315 [20 Tex. 315]; Lanham v. State, 7 Texas Crim. App., 126; Bohanan v. Hans, 26 Tex. 445. We therefore hold that a requested instruction can not take the place of a bill of exception in regard to testimony illegally introduced or rejected. The authorities cited by appellant, notably the case from Missouri, are not in point inasmuch as the question is not properly before the court. There having been no bill of exception reserved to the introduction of this testimony, it can not be raised by a special charge. Therefore, the following authorities relied upon by appellant, Johnson v. State, 76 S.W. Rep., 925; Rogers v. State, 44 Texas Crim Rep., 350, 71 S.W. Rep., 18; Weaver v. State, 43 Tex. Crim. 340, 65 S.W. Rep., 534, are not in point.
¶9The 15th assignment of error complains of the failure of the court to give the following charge: "That the mere presence of the defendant at the time and place of the killing, if he was present, would not justify you in finding him guilty of the offense charged, *153 unless the State has satisfied your minds by competent evidence, and beyond reasonable doubt, that he (the defendant) knowing the unlawful intent of the party committing the act, aided him by acts or encouraged him by words or acts to commit such offense. And it would devolve upon the State to prove such acts by competent evidence, beyond a reasonable doubt, before you can convict defendant upon such evidence." The charge on principals in this case was very full. It covered every possible phase required under the law of this State. It told the jury in clear and succinct language that they must believe beyond a reasonable doubt that the parties were acting together at the time of the commission of the offense, and it was not necessary. Furthermore, there was no testimony that parties were not acting together.
¶10Appellant insists the court should have charged the jury that they must not allow the fact that he is a Mexican to influence them in arriving at a verdict. There is nothing suggested in this record to require such a charge. Or a charge to the effect that they must not consider the bare fact that the deceased was a district judge.
¶11The 17th and 18th assignments of error complain that the court erred in refusing to permit appellant to read a decision of this court, in the case of Francisco Gonzales, which shows that Jose Pena had authority to commission men to carry arms, and, further, to show that he had deputized appellant to carry arms on the day after the homicide. It seems that the State proved that on the morning of the 6th after the homicide and after the discovery of Judge Welch's dead body a large number of men, marching in file and headed by a band of music marched by and stopped in front of the house of the deceased, and that said men were accompanied by a number of armed men carrying rifles or Winchesters and pistols. Appellant insists that this testimony was calculated to impress the jury that the parties were unlawfully armed, and that this defendant was one of the parties. It was pertinent for the State to show that appellant, in company with others, was armed the next day following the homicide. The court admitted testimony to the effect that appellant was legally carrying arms in order to rebut the presumption created by the State's evidence, but we do not think a decision of this court holding that one Pena was authorized to issue a commission to bear arms was admissible under any view of the case. Nor do we think the testimony of sufficient moment to require the court to tell the jury that appellant had a legal right to bear arms on the day after the homicide.
¶12The 22d and 23d assignments of error complain that the court erred in permitting John I. Kleiber to testify for the State, in substance and effect, that during the next day after the commission of the homicide, he sighted through the aperture where the slat was broken out of the shutter on the east window of the room in *154 which the deceased was sleeping and in which the body was found, on the morning of November 6, 1906, towards the body and wound of the deceased, and that the east window of said room was immediately behind the body of Judge Welch and immediately behind the hole in the back of said body. This testimony was admissible. The testimony of Dawson to the same effect was also admissible. The fact that the body had been removed and replaced would only go to the weight of the testimony.
¶13The 24th assignment of error complains that the court erred in permitting the witness Dawson to testify for the State that the bullet which killed the deceased entered in the back near the right shoulder blade, and that the point of exit was the wound in front of the body, on the left breast. The bill shows the witness was an expert on gunshot wounds, and there was no error in admitting his testimony. The testimony of the witnesses as to the condition of the window blind and all other circumstances surrounding this homicide were admissible.
¶14Bill of exception No. 14 complains that the court erred in permitting the district attorney to frighten and intimidate the witness Rafael Moreno. The qualification contradicts this contention.
¶15The 31st error complains that the court erred in admitting before the jury the testimony of Cayetano Pena, a State's witness, over the objection of appellant, and upon the defendant's challenge as to the competency of said Cayetano Pena as a witness herein, it being shown by uncontroverted evidence introduced by defendant at the time said witness was offered by the State that he had twice been convicted in the United States District Court at Brownsville, Texas, of felonies, to wit: the crime of illicit retail liquor dealing, and the crime of receiving and concealing smuggled property, both in violation of the Federal Statutes for such cases made and provided, and introduced in evidence. Under the United States Statutes defendant might legally be punished by confinement in the penitentiary for a term greater than one year in duration, appellant urging the incompetency of said witness under the terms of section 3, of article 768, of the Code of Criminal Procedure of Texas. In the case of Reagan v. United States, 157 U.S. 301; Barron v. United States, 156 U.S. 495; Ex parte Wilson v. U.S.,114 U.S. 417; Mackin v. United States, 117 U.S. 348, it was held that the offense of which appellant was convicted is not a felony. In the case of Pitner v. State, 23 Texas Crim. App., 366, in passing upon a similar question, we held that the defense, in order to make the judgment available for the purpose of disqualifying the State's witness, should have proved by the law of Kansas that forgery was a felony. We therefore hold that the witness was not disqualified to testify since, according to the Federal decisions the offense of which he was convicted was not a felony and could not come within *155 the terms of the statute invoked by appellant to disqualify him from testifying.
¶16The 33d error complains that the court erred in permitting Cayetano Pena to testify for the State that he told his son-in-law, Pancho Trevinio, in April, 1907, what he (Pena) claims to have seen and heard on the night of November 5, 1906, pertaining to the murder of Judge Welch as shown by bill of exceptions No. 21. This testimony was objected to by appellant on the ground that it was irrelevant, immaterial and hearsay. Furthermore, that said Pena had not been impeached by any other witnesses at the time he was allowed thus to testify. But the record and bill does show that he was impeached by proving contradictory statements to the one sworn to in the trial of this case. Therefore, it was permissible to prove what he told his son-in-law.
¶17The 34th and 35th assignments show the following: While the witness Jose Maria Gonzales, a witness for the State, was testifying, on cross-examination by defendant, in reply to a question, the witness stated: "There he is, ask him," pointing to the defendant at the time he made said remark. From this circumstance Mr. Seabury, counsel for the State, in his argument to the jury, undertook to impress upon the jury the idea that said witness Gonzales was an honest and truthful man, as shown by the remarks made by him, and his pointing at the defendant. The defendant said that said argument and conduct of said Seabury constituted and were in fact an indirect but exceedingly harmful allusion to the failure of this defendant to testify herein in his own behalf. The bill of exceptions in reference to the matters presents it as follows: While the witness was on cross-examination he was asked: "Q. What were the first words Cabrera spoke to you? A. In what direction was the shot? Q. What did you reply? A. I told him it was that way (indicating). Q. Is that all you said, just `that way?' A. Yes, sir, towards the courthouse. Q. Did you mention his name? A. No, sir. Q. Are you sure those are exactly the words he used? A. Yes, sir. Q. Then what did you reply to that? A. I told him, `No, it was towards that way.' Q. Is that all you said? A. That is what I told him. Q. You are sure that is all you said? A. Yes, sir. Q. Then what did he reply? A. He said, `We were drinking coffee when I heard the shot, and I do not know in what direction it was.' Q. He had just told you what direction he thought it was, had he not? A. Yes, sir. Q. Then he turned around and told you that he had been drinking coffee and did not know in what direction it was? A. Yes, sir; you can ask him, he is there present (indicating the defendant). Q. Did any other words at all pass between you at that time? A. No, sir. Q. Are you sure the words you have given here under oath are the exact words that passed? A. Yes, sir." During the discussion of the above facts by Mr. Seabury he referred to this incident in the trial of the case which had been *156 brought out by examination of appellant's counsel; whereupon an objection was immediately made that appellant had not testified, and the court passing upon this matter endorsed upon the bill of exceptions a complete and full statement of the facts and stated in his explanation attached to the bill that Mr. Seabury never referred to any matter that could be construed as intimating to the jury anything about appellant not having testified. In the light of the explanation of the court we can not hold it was an allusion to defendant's failure to testify. The bill is quite long and we have copied same as full as the length of this opinion will justify. There appears to have been no protest at the time the witness made the statement on the part of the defense counsel. The witness replies, "Yes, sir, there he is, you can ask him," but appellant's counsel never protested against it, and the attorney inadvertently repeated what the witness stated. We can not say that this violates the statute invoked in this case.
¶18There is a long bill of exceptions in this record complaining of the argument of Hon. A.B. Davidson. In the light of the explanation of the court the argument was legitimate, or at least was a retort upon the argument made by appellant's counsel and provoked by them.
¶19The 39th error complains of the misconduct of the jury in this: After the jury had heard part of the argument in this case, but before said argument was finished, and before the jury received the charge of the court herein, one Charles Lenz approached H.C. Huebotter, who was then and there a duly empaneled and sworn juror in this case, at or near the restaurant of said Lenz in the city of Cuero, Texas, and stated to said Huebotter that he (Lenz) had received a telephone message to the effect that said Huebotter's horse had run away with his buggy, in which his (Huebotter's) children were riding, and had torn up the buggy, and that the horse was badly cut up by barbed wire, but his children were not hurt, and for him not to be uneasy. Attached to the bill presenting this matter is the affidavit of the juror, but the district judge found as a matter of fact that said affidavit was untrue and the juror trying this case was in no way influenced by what occurred and the juror Huebotter had stated facts not true, and that the verdict of the jury was in no way affected by what occurred in the jury room nor what occurred in the presence of Mr. Lenz. To present these matters in detail would be unnecessary, since after a very careful reading of same we hold that the irregularities complained of were harmless to defendant and did not in any way jeopardize his rights or increase his punishment, pains or penalties. Other misconduct of the jury complained of by appellant has also been reviewed by us and we find no ground for reversal of the judgment by reason of such misconduct.
¶20We have discussed with much candor and detail all the *157 assignments of error raised by appellant in this very voluminous record covering in all nearly one thousand pages, and feel constrained to say that a verdict in consonance with justice and with law and the procedure of this State has been secured. The record clearly shows that appellant, in conjunction with his codefendant, acting as a cowardly tool of a lot of political assassins killed the district judge of his district. That the evidence is as clear and cogent as it might be can not be said, but that it is sufficiently convincing to show to any fair mind that the appellant was one of the guilty participants in the assassination, we take it there can be no cavil about.
¶21So believing and so finding the record, the judgment is in all things affirmed.