Appellant was tried upon an indictment charging him with the murder of one James D. Holt. His conviction was for murder in the second degree, with the punish*180ment affixed at imprisonment in the penitentiary for a term of fifty-seven years.

A motion to quash the indictment for invalidity was overruled. This indictment is a literal copy of the form for an indictment for murder held by this court to be good in many decisions where its sufficiency was questioned. (Willson’s Grim. Forms, § 388, p. 173, where the authorities are all collated, and notably amongst them see Bean v. The State, 17 Texas Ct. App., 60; Sharpe v. The State, id., 486, and Bohannon v. The State, 14 Texas Ct. App., 271.)

Defendant’s first bill of exceptions was to the insufficiency of the copy of the indictment as served upon him. In itself the bill is indefinite and insufficient to show the point complained of, and we might upon this ground excuse ourselves from noticing it. We understand, however, from the brief of counsel, that the objection urged was that the copy of the indictment served upon him did not contain, indorsed upon it, the names of the witnesses, as required by law, upon the original indictment. (Code Grim. Proc., art. 413.) In Hart v. The State, 15 Texas Ct. App., 202, it was said in discussing this question: “ Whatever may be the rule or reason of the rule in other States, the question has long been a settled one in Texas. In the early case of Steele v. The State, 1 Texas Reports, 142, it was held that the statute requiring such an indorsement upon the back of an indictment was merely directory, and that such indorsement is not a constituent part of the indictment or of the finding of the grand jury, and is not essential to its validity. In Skipworth and Boles v. The State, 8 Texas Ct. App., 135, it is said: 6 While the statute prescribes that the names of the witnesses upon whose testimony the indictment is found shall be indorsed upon the indictment, yet no mode is designated by which a failure to do so can be reached, and in the absence of further legislation the omission must be held immaterial.’ . . . Doubtless it would be the better practice for the clerk, in making out the certified copy of the indictment, to copy all the indorsements upon it; but we know of no statute or provision of law requiring that the certified copy■ shall contain such indorsements.” (Willson’s Crim. Forms, p. 19, sec. 58.)

It is shown bjt the third bill of exceptions that the State proposed to prove by one Culberson the confessions of defendant voluntarily made before arrest. On his voir dire Culberson stated that he was a close neighbor of defendant, and that defendant knew him to be a lawyer; that defendant made his statements to witness at witness’s house just after the shooting; that, though subsequent negotiations *181had taken place between defendant’s friends and witness about witness’s being retained and employed as an attorney to defend the case, they were never consummated in any contract of employment, but that pending these negotiations witness had appeared at an examining trial for the defendant so far as to waive an examination in his behalf. Upon these facts appellant objected to the witness’s testifying to said confession, upon the ground that they were privileged communications, which the attorney could not divulge, and the court sustained the said objection. The prosecution then proposed to prove the same confessions made to Culberson by the wife and mother-in-law of Culberson, who were present in the house at the time, and heard the confessions as made by defendant to Culberson. Defendant objected to the competency and admissibility of these witnesses upon the ground that the communications, being privileged as to Culberson, would be privileged as to any one, especially a member of his family who was present and heard them. This objection being overruled by the court as to the mother-in-law, who it appeared was not a member of Culberson’s family, but only a visitor to his family at the time, defendant saved an exception to this ruling; and thereupon counsel for the State and defendant suggested to the court that, inasmuch as the testimony of (the mother-in-law) Mrs. Bridges would be the same as that of Culberson, defendant would withdraw his objections to Culberson’s testifying to said confessions, and in open court consented that Culberson should testify, but still claimed that Mrs. Bridges, whom Culberson was simply testifying as a substitute for, was incompetent.

In Hernandez v. The State, 18 Texas Ct. App., 135, it was held that our statute, Code Crim. Proc., art. 733, inhibiting an attorney from disclosing privileged communications, extended the privilege to any fact which came to the knowledge of the attorney by reason of such relationship. The privilege exists whenever the relation of attorney and client exists. But, says Mr. Greenleaf: “ In regard to the persons to whom the communications -must have been made in order to be thus protected, they must have been made to the counsel, attorney or solicitor acting for the time being in the character of legal adviser(1 Greenl. Evid. (13th ed.), § 239.) The privilege does not extend to information received from the party by one in the character of a friend and not as counsel (Hoffman v. Smith, 1 Cai., 157; Goltra v. Wolcott, 14 Ill, 89), nor to a student at law, because studying in an attorney’s office or under his direction (Holman v. Kimball, 22 Vt., 555; Barnes v. Harris, 7 Cush. (Mass.), 576), nor to third persons present at the conference between *182attorney and client. (Hay v. Morris, 13 Gray (Mass.), 519; Goddard v. Gardner, 28 Conn., 172; 1 Wait’s Act. & Def., p. 470; Whart» Crim. Evid. (8th ed.), § 502.)

Mrs. Bridges was not incompetent or disqualified because she was present and heard the confessions made by defendant, even assuming that the relation of attorney and client subsisted in fact between him and Culberson. If Mrs. Bridges was competent, then under the circumstances developed, we see no reason why-defendant could not, as he did, consent that Culberson might testify as a substitute for Mrs. Bridges; that is, state the facts which she would have stated had she been a witness on the stand. In fact, defendant could, had he so desired, have waived the privilege as to his attorney and have consented to the attorney’s testifying. (1 Wait’s Act. & Def., p. 471, § 5; Whart. Crim. Evid., §§ 498 and 500.) Our statute provides that “the defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.” (Code Crim. Proc., art. 23.)

These are all the questions presented by the record or urged on this appeal. With regard to the charge of the court, it was an ample, lucid and able presentation of the law applicable to the evidence, and no objection has been or could be maintained to it. The verdict and judgment are fully sustained by the evidence. No error being made to appear, the judgment is affirmed.

Affirmed.

[Opinion delivered October 28, 1885.]