Appellant was convicted of robbery by assault, and his punishment fixed at confinement in the penitentiary for a term of five years.
The first bill of exceptions complains that while State's witness Ramon Gonzales was on the stand, he was permitted to testify: "After I took Mr. Hammel to the police station and reported the matter to the night captain, I left Hammel there at the police station and we went from there to the Toltec saloon, where I met Mr. Bollen. I walked right in the saloon and he walked right in behind me. He said something to me. `He was kind of afraid, something on his mind.' He said something to me, some word, I cannot explain myself just like he said to me; something on his mind, something happened at his place before that was all he said." Defendant objected at the time it was offered, for the reason it was introduced by the State for the purpose of showing a confession on the part of Bollen (defendant). The facts show that witness was an officer, and that defendant, while not under actual arrest, was under surveillance at the time, by a man whom he (defendant) knew to be an officer. That the statement was not made after the statutory warning; and further the statement was vague and indefinite, and does not show to have been made with the alleged robbery in mind at the time. The court approves the bill with the following explanation: "The above statement, `is vague and indefinite and does not show to have been made with the alleged robbery in mind at the time,' if given as a reason is not now remembered by the court." That the same is vague and indefinite a casual inspection will disclose. As to whether the witness states anything is left more or less in doubt. The bill fails to show appellant was under arrest, nor is there anything in the bill showing he was under surveillance of an officer at the time. While it is true appellant urges these as grounds of objection, still the bill does not show them to be facts. As we glean from the statement, *Page 73 the substance of what the officer testified is, that defendant appeared to be frightened. This is legitimate testimony; the condition and appearance of one immediately after a crime is committed, is legitimate proof on his trial.
By another bill, appellant complains that prosecutor Hammel was permitted to testify to the following: "So we went back there and had a couple of more drinks, and Murphy claims that I called him a son of a bitch." Defendant objected on the ground that it was irrelevant, immaterial to any issue, and highly prejudicial. The State had failed to show any conspiracy between the parties defendant, and that the statement made by defendant Murphy could not have been introduced, and defendant was not bound thereby; that the mere presence of defendant at the time and place of the alleged conversation, when it is not shown he participated in the conversation, would not make it admissible. For ought the bill shows the testimony may have been quite material. It is true appellant objects to the same on the ground that no conspiracy is shown between Murphy and appellant; but the bill does not show the judge certifies this to be a fact, but merely that appellant urged this as a reason for excluding the testimony. Could we revert to the statement of facts, the testimony would be clearly admissible, since the statement occurred immediately before Murphy and appellant robbed witness Hammel.
Appellant also complains in another bill that witness Ramon Gonzales, a policeman, was permitted to testify: "I was coming down Mesa Avenue, right about the corner there, when I saw a party come out of the saloon, stand and look up and down the street and go right back in the saloon. I did not know the party." Appellant objected on the ground that the witness did not identify the party looking up and down the street; that this was some time prior to the alleged robbery. How and in what way, this testimony could have injured appellant, does not appear. As appears by the bill, it is not connected with any testimony. Witness states he did not know the party, and hence we do not see how appellant could be injured.
In motion for new trial appellant insists that the court failed to fully instruct the jury as to the law, in this: that the charge as given does not define an assault or assault and battery. The charge shows that the court copied the statute on assault but did not copy the statute defining assault and battery. We think this was sufficient in view of the fact that the indictment charged robbery by an assault.
Complaint is also made of the charge on principals on the ground that it tells the jury that all parties would be principals whether in point of fact all were actually bodily present on the ground when the offense was actually committed or not. This charge is erroneous, as appellant insists, under the repeated decisions of this court; but it could not have injured him because his own testimony as well as that of the State shows he was present. There was no testimony that he was absent from the scene of the crime. *Page 74
After defining principals, the court charged the jury: "Of this the jury are to judge from the surrounding circumstances in proof — such as companionship of parties and the conduct of the defendant at, before and after the offense was committed." Appellant insists this charge was on the weight of the evidence. The evidence both for the State and defendant shows that appellant and prosecutor were together and companions at the time of the alleged robbery, and consequently the charge of the court was not that character of error as was calculated to injure the rights of appellant, and under article 723, Code Criminal Procedure, we will not reverse the case.
No reversible error appearing in the record, the judgment is affirmed.
Affirmed.
Henderson, Judge, absent.
ON REHEARING. April 26, 1905.