In his motion for rehearing appellant forcefully argues that this court was in error in upholding the action of the trial court in departing from the order in which the two cases against the appellant appeared upon the docket. *Page 65
In cause No. 6692 the appellant, Alfred Simpson, and Rambin were charged with robbery by firearms. In cause No. 6693 Rambin was charged with murder and, upon his trial, was convicted and his punishment assessed at confinement in the penitentiary for a period of ninety-nine years. In the present cause, No. 6694, the appellant was charged with murder. Excepting to the court's refusal to require the disposition of cause No. 6692 in advance of the present case, appellant stated as grounds for exception that in the present case, upon the habeas corpus hearing, bail had been allowed; that in the robbery case bail had been denied; that if cause No. 6692, the robbery case, had been first called, he might have asked for a severance and that Rambin be first tried; that in the event of an acquittal of the appellant of robbery, he might have interposed a plea of former jeopardy; and that even if former jeopardy had not been available, he would have been entitled to make bail in cause No. 6694, the murder case, and thereby be free from embarrassment of enduring the present trial while under arrest. Note is to be taken of the fact that these matters are but recitals of appellant's reasons for complaining of the action of the court. These recitals, however, are urged upon this motion as a demonstration of injury to the appellant. The trial court qualified the bill of exceptions with the statement, in substance, that cause No. 6692 was first called; that the State announced not ready, and the case was passed.
In the appellant's confession, he advances the theory of innocent presence in the commission of the offense and forced participation in disposing of the property and body of the deceased. In submitting his theories to the jury, the learned trial judge is characterized by liberality towards the appellant. He gave a charge on circumstantial evidence and fairly submitted the issue of principals; he charged on alibi and instructed the jury that appellant, though present at the homicide and though he aided in disposing of the fruits of the crime, he should be acquitted unless he, with guilty knowledge of the unlawful intent of Rambin, aided or encouraged the homicide, or agreed in advance that it should take place. In a second special charge upon the same subject, the court instructed an acquittal if the evidence left in the minds of the jury a reasonable doubt as to whether the appellant aided or encouraged Rambin in the commission of the crime, and expressly instructed in an additional special charge that his aiding in the disposition of the body of the deceased would not justify his conviction of murder.
The presence of the appellant at the time that Parrish was killed was conceded by him in his confession. Therein he claimed that without previous agreement upon the part of the appellant, Rambin shot the deceased and forced the appellant to aid in disposing of his property and body. The evidence reveals that two *Page 66 weapons were used in the homicide, namely, a pistol and an iron bar; that at the time the deceased was killed, he was in his own automobile which, after making use of it to deposit the body in the lake, appellant drove to another county and with his companion deposited it in a garage; that the other property found in the possession of the deceased was disposed of.
Appellant's position that there could have been no conviction of robbery is not deemed sound. The facts might have warranted a conviction for either robbery or murder. See Ex parte Jones,82 Tex. Crim. 13, and authorities there cited. Ordinarily, criminal cases should be called in the order in which they appear upon the docket, but this phase of the procedure is one within the judicial discretion of the trial judge, and his action is to be reviewed only when such discretion is abused. This we understand to be the rule sanctioned by this court. See Nichols v. State, 3 Texas Crim. App. 546; Godwin v. State, 44 Tex. Crim. 603; Wright v. State, 10 Texas Crim. App. 480; Todd v. State, 57 Tex.Crim. Rep. and 26; Moore v. State,94 Tex. Crim. 489, 251 S.W. Rep., 1086; Goodwin v. State,65 Tex. Crim. 98, 143 S.W. Rep., 939; Shehane v. State, 13 Texas Crim. App., 533.
The recitals in the bill of exceptions, so far as they are mere recitals not verified by the certificate of the judge, or otherwise revealed by the record, cannot be considered as showing injury. Conger v. State, 63 Tex.Crim. Rep., and authorities there listed.
That a severance in the robbery case would have resulted in the trial of Rambin first or the acquittal of the appellant, appears but speculative. The same is true of the theory presented in argument that if upon the trial of the robbery case, appellant had been convicted with punishment assessed at fifteen years or less, he might have been released upon bail. The court, as stated above, was not absolutely bound to finally dispose of the cases in the order in which they appeared upon the docket. He was bound at most to exercise sound discretion and to refrain from arbitrary action. It appearing that the State was not ready for trial and that the robbery case was passed upon the order of the court, the presumption in favor of the soundness of his ruling prevails in the absence of facts showing an abuse of discretion. Morgan v. State, 82 Tex.Crim. Rep..
The other questions raised in the motion for rehearing have received attention in the original opinion. With the record before us, we are constrained to adhere to the conclusions therein stated.
The motion is overruled.
Overruled. *Page 67