The conviction is for assault with intent to rob; punishment fixed at confinement in the penitentiary for a period of four years.
The alleged injured party was W.B. Flemmons, who testified that after he had retired someone knocked at the door and claimed that it was Archie Hayne, (who was a friend of Flemmons). Flemmons struck a match and opened the door, and the party outside came in with a pistol in his hand, pointed the gun at Flemmons and stooped over. Flemmons grabbed the gun and a struggle ensued. The gun was fired twice and the party went out of the room. The assailant left his hat in the room which was identified as belonging to the appellant, Seymour.
The testimony of Byers, an accomplice, was used and was to the effect that he, Seymour and Little made an agreement to rob Flemmons; that he, Byers, went into the house to Flemmons' bed, and that when Flemmons saw the pistol, he asked who the assailant was and was told that it was a friend. Flemmons grabbed Byers, and in the struggle the pistol was fired twice. The witness said he was wearing Seymour's hat; that he told Flemmons his name was Hayne; that he did this at Seymour's suggestion.
We understand from Byers' testimony that the appellant and Little were present and had handkerchiefs tied over their faces. Little stayed in the alley and Seymour was in the yard, but did not go into the house. The witness Byers had a pistol. The object of the entry was to rob Flemmons of money which they understood that he had in his possession.
Appellant's written confession was introduced to the effect that he, Byers and Little had planned to rob Flemmons and another party; that they went to the house of Flemmons with handkerchiefs tied over their faces; that he and Byers exchanged hats; that he told Byers to say his name was Hayne; that Byers opened the door and said: "Lay still." There was a scuffle and shots were fired, and that he, and Little ran away. Byers later joined them.
We fail to discern any such weakness in the evidence as to justify a reversal for want of proof. Our attention has been directed to no authority which would justify such a conclusion. See Branch's Ann. Tex. Penal Code, Sec. 2409.
The court instructed the jury that the confession could not be considered unless the jury should believe that it was voluntarily made by the defendant. The court gave a special charge that the confession alone was not sufficient, and to support the conviction there must be *Page 188 corroboration; it also instructed that the mere presence of the appellant would not justify a conviction. The court further charged on the law of aggravated assault.
Two special charges were requested to direct the minds of the jury to the law requiring that the confession be voluntary. The charge given was practically in the language of one of the special charges requested. The appellant did not testify, nor was there any affirmative testimony discrediting the voluntary character of the confession, unless it be that showing the presence of officers at the time it was made. It was made to the County Attorney who testified to its voluntary character. In form, it complied with the statute. It was made in the presence of Byers and Little, as well as the two policemen and the deputy sheriff. At least, they were in the office of the County Attorney at the time. The policemen had made the arrest. One of appellant's eyes was red.
Conceding that under the rule in Cortez v. State,43 Tex. Crim. 382, one of the special charges prepared by the appellant would have been more appropriate on the question of the voluntary character of the confession than that which was embraced in the court's charge, we are of opinion, that, in view of the fact that in writing his charge, the court practically adopted the language of one of the special charges upon the same subject which the appellant submitted, his refusal to give the other special charge was not error justifying a reversal of the judgment. The rule is well established that a special instruction may be refused where the same, in substance, is embraced in another special charge that is given, or embraced in the main charge. Vernon's Tex.Crim. Stat., Vol. 2, p. 495, note 18, and authorities cited. See Mays v. State, 58 Tex.Crim. Rep.; Tucker v. State, 150 S.W. Rep., 190.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING January 3, 1923.