Appellant was tried for the murder of Bruno Hidalgo, charged to have been committed on the 1st day of January, A. D. 1881, in Bexar county. He was convicted on the 2lth day of January, 1881, of murder in the second degree, and his punishment was fixed by the verdict and judgment at twenty years’ confinement in the penitentiary.

As shown by the first bill of exceptions, the State’s counsel “ asked the witness Clothilda Cadenas if she was robbed of any money on the night of the killing ? and if the defendant had any knowledge of her having any money ? ” Defendant’s counsel objected to the questions on the following ground: “Because the defendant was not charged with robbery in the indictment.” As this is the only objection urged to the questions stated in the bill of exceptions, we presume that it was the only ground upon which the evidence was sought to be excluded. This objection was not well taken. The rule is that “ when a murder by violence and upon express malice aforethought is charged, then the prosecution may show, as part of the res gestee, that it was also done (if such were the fact) in the perpetration or in the attempt at the perpetration of either arson, rape, robbery, or burglary.” Roach v. The State, 8 Texas Ct. App. 478. This being the only objection to the testimony, the court did not err in overruling it.

The second, third, fourth and fifth bills of exceptions *7relate to the same subject matter, and may be treated as one. For the purpose of impeaching the defendant’s witness, Gregorio Reyes, the county attorney, after laying the proper predicate by stating time, place and circumstances, asked said witness if he had not made such and such statements, to parties who were named, about the murder and matters transpiring at the time of the killing. This testimony was objected to by defendant’s counsel upon the ground that at the time said proposed statements were made by the witness, he, the witness, was under arrest. In certifying each of these bills, the judge explains that the evidence showed that the witness was not, at the time the statements were made, under arrest or in duress.

Supposing the witness had been under arrest, this fact would not have rendered the statements inadmissible, unless it were shown that he was under arrest charged with the murder for which he was on trial. Confessions which are excluded as evidence because made whilst under arrest are those which are made by the defendant. Code Crim. Proc. arts. 149, 150. Here the statute is sought to be made applicable, not to the confessions of a defendant who is under arrest, but to the statements of a witness who, if at the time under arrest, for aught that the record shows was .under arrest for some other offense. The provisions of the statute cannot be strained to such an extent, and were not intended to embrace such statements.

The remaining bill of exceptions is to the refusal of the court to permit defendant’s counsel to prove up and read to the jury a copy of the testimony taken upon the coroner’s inquest,—the testimony as taken down in writing and certified by the coroner having been lost. The bill of exceptions is too meager to show what the object and purpose of the defendant really was in desiring to read the evidence taken before the coroner; it does not show what *8testimony was taken before the coroner which it was the desire of the defendant to use. If the testimony of some absent witness was desired, it is not shown who the witness was nor the diligence used. If the object was to supply a lost writing, then the proper steps to admit secondary evidence of its contents are not shown to have been taken. If the object was to furnish testimony either in support of an impeached witness or for the purpose of - impeaching a witness, then the proper mode of accomphshing either object, when it was ascertained and shown that the written testimony taken before the coroner was lost, would have been to introduce witnesses who were present at the coroner’s inquest, and have had them to testify as to what was at the time deposed by the witness whose testimony was called in question.

It only remains for us to say that we have considered this record carefully in the light of the evidence adduced on the trial, and we are constrained to say that in our opinion the defendant has every reason to congratulate himself upon the mildness of the punishment imposed by a merciful jury. The heartless atrocity of his crime as disclosed in the record finds but few parallels in cases of murder in the second degree. So far as we have been able to ascertain, he has had a most fair and impartial trial, and his punishment is legally and justly awarded him. The judgment of the lower court is therefore in all things affirmed.

Affirmed.