This cause has been reversed because of what my Brethern think was the insufficiency of the evidence. I am not in accord with such a conclusion.
The recital of the facts are correctly set forth in the opinion, with the following addenda: Early in the morning of the day that Mr. Locklar lost his property, about 3 or 4 o'clock, a policeman of the City of Wichita Falls saw appellant and the soldier, John Hunter Stockwell, in each other's company in Wichita Falls, the city in which the assault was alleged to have taken place. Again, the filling station operator, L. E. Taylor, at about 2:30 in the morning, was at work in the filling station in Dallas, which was located on a road from Wichita Falls to Dallas, and he noticed an automobile, which later was shown to be Locklar's, was stopped out a short distance from such filling station, and such car remained stationary there for about five minutes, after which time appellant drove up to the filling station in a car that was afterwards identified as Locklar's, and asked Taylor for a cigarette and a match, which Taylor gave him; he then asked Taylor how was business and received the answer "fair," and sat there a minute longer and said "I'll be seeing you" and drove off. There was another man in the car with appellant dressed in soldier's clothes. When this pair first drove up to the filling station Taylor happened to look in the back seat of their car and there saw a man sitting on the floor of the car with his hands tied and blood on him, with his head on the back seat of the car. When the soldier observed Taylor looking at the man in the back of the car he punched appellant and appellant drove off. Taylor also said:
"I just noticed blood on this man here and it was a white shirt he had on. I saw spots of blood on his white shirt. It was before I saw the man tied up in the back of the car that I noticed the blood spots on his white shirt, it was when they first drove up and I walked up to the side of the car that I noticed it. * * * This blood I saw on him wasn't on him over *Page 130 there (meaning in jail). I don't think there was blood on him over there, but in Dallas when I saw him, it was along here on his shoulders. It looked like it had been thrown on there with his fingers but there wasn't a big smear. There was some blood down here on his arms. I believe there was some down on his sleeves. I don't think I could see but one hand and it was on the left side. I think there was some on there, I wouldn't be for sure; it was right along there. It looked like somebody did that (indicating). I suppose it was red, that is the color of blood. It was real bright red; the blood on the man's shirt front was real bright red."
This witness also identified the soldier. It was also shown that the car in which they were riding, appellant driving, was Locklar's car.
It was also shown that Mr. Locklar, when found the next morning in Dallas by the policeman, Mr. Tranthem, was in the following condition, according to the witness:
"Mr. Locklar's head was bloody all over and terribly swollen. And his eyes as far as I could tell were closed from the results of swelling. You couldn't see the color of his face at all as to whether he might have been a white man or a negro. All you could tell was he was a mass of blood all over from the top of his head to below his waiste. A mess is the only way to describe it. A large portion of the blood had dried. He was in a bad shape. And we took him to the emergency room, turned him over to the first aid. I watched the doctor treat him. Mr. Locklar was undressed by the orderly at the hospital. He was in such a mess the nurse started to undress him and the orderly came in about then and the doctor ordered him to undress him because the man's tie and shirt and coat were a gob of dirt and some of the blood was still sticky, and the other had dried up and this negro orderly undressed him there for the doctors and nurses."
Another policeman, Mr. Bullock, testified, relative to the Locklar automobile, the same one identified by number by the filling station operator:
"The left front fender and the left running board and the bumper were damaged, and I believe there was some damage to one of the doors. The fender was crushed and the running board at the center, and the front bumper looked as though it had had a lick, it was pushed in through the grill. The back *Page 131 seat was very bloody, that is the upholstery, and down in the bottom on the mat. The front seat and all the glasses were spattered with blood and there was blood on the steering gear and on the cowl, and blood all over it. The glasses were spattered with blood and that blood had all dried, but some of it wasn't exactly dry. We put the car in the city pound. I know that the car later was turned over to Mr. Locklar. My records show he signed for it. There was blood down in the bottom of the car on the floor and in the back seat too, and the front and back window glass."
Appellant was charged in the indictment with making an assault upon Hy Locklar, and, by means of such assault, taking from Locklar the sum of seven dollars in money and a 23-jewel Elgin watch. The money was never found, although the watch was located in a pawn shop in Dallas.
It will probably be admitted that if appellant had been charged with the theft of the automobile, his unexplained possession of the same, having been recently stolen, would have been sufficient to authorize his conviction for its theft; but the State's failure to show him in the possession of the stolen money and watch is claimed to militate so strongly against the State that this cause should be reversed on account of an insufficiency of the evidence.
It is to be noted that the careful trial court gave an instruction on circumstantial evidence.
I therefore think the following legal proposition is of prime importance herein:
"The jury may infer the stealing of the whole from the possession of a part." Branch's Criminal Law, Sec. 794, citing Hill v. State, 41 Tex. 256; Jack v. State, 20 Ohio App. 656; Rose v. State, 52 Tex.Crim. Rep., 106 S.W. 143; White v. State, 17 Texas App. 188; Gonzales v. State, 18 Texas App. 453.
Although it has been held improper for the court to so charge the jury, such being upon the weight of the evidence.
In the Rose case, supra, a case of theft, the owner of a pair of pants left his trousers, wherein was his pocketbook, at a place where accused was working; the pocketbook, which contained $5.00 in money and a drink check on a saloon, was taken by some one out of such trousers; the accused was later *Page 132 identified as the man who had utilized such drink check at the saloon soon after the theft, although the money was never found. Judge Davidson, in disposing of such matter, said:
"Appellant moved in arrest of judgment, the contention being that at most the drink check alone was found and traced into his possession; and this being insufficiently described in the indictment, would not authorize the conviction of appellant for the theft of the money, or his conviction at all. For the purposes of this case, if it be conceded that the drink check was insufficiently described (see Patrick v. State,50 Tex. Crim. 469; 98 S.W. Rep. 840; and Wade v. State,35 Tex. Crim. 170; 32 S.W. 772), yet, if appellant was found in possession of the check, and this was shown without its even being alleged in the indictment, it might be sufficient to establish, under the circumstances in this record, that appellant had taken the pocketbook and all of its contents, and there is no question that the money was sufficiently described. If the drink check was traced to appellant's possession immediately after its loss, it would be very clear and cogent evidence of the fact that he took the pocketbook and all of its contents, for the check was in the pocketbook. There can be no question here that, if appelland stole the drink check, he stole the pocketbook and all of its contents."
It is also contended herein that under the facts as set forth herein appellant was a principal and came under the denunciation set forth in the latter part of Art. 67, P. C., which reads as follows:
"All persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act, and all persons whoendeavor at the time of the commission of the offense to securethe safety or concealment of the offenders are principals."
The proof unquestionably shows appellant in possession of and driving the car of Locklar, with a man dressed in soldier clothes sitting by him, in the early morning of the night the offense was committed, some few hours after such commission, and after their flight from the scene of such offense some hundred miles away, the appellant driving the car, thus attempting to secure the safety of the person whom the majority opinion says was the original and only offender. *Page 133
The writer is of the opinion that taking into consideration the surrounding circumstances, the jury had a right to infer that appellant was present at the time the assault was made upon Mr. Locklar, and that he was a principal in the robbery when Locklar lost his money, his watch and his car, and which car was later seen in appellant's possession. I think the presence of blood upon appellant was a strong circumstance to show that he was present when the car was spattered with Locklar's blood, and Locklar was robbed; and that sufficient testimony being present to show his participation in the car theft, the jury had the right to infer that he was also present and interested in the further robbery of the money and watch.
I think this cause should be affirmed, and I therefore respectively dissent from the views expressed by my Brethren.
ON MOTION FOR REHEARING.