Appellant complains in his motion on account of the fact that the trial court, in his charge relative to principals, included therein the portion usually given relative to one's guilt who had acted with a common design and purpose with another, "whether in point of fact all were actually bodily present on the ground when the offense was actually *Page 283 committed or not," and then later on in the court's charge relative to the defense of an alibi, he charged as follows: "Now if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place were the offense was committed (if committed) at the time of the commission thereof, you will find him not guilty." The appellant cites us to the Yeager case, 294 S.W. Rep. 200, and the Leahy case, 280 S.W. Rep. 812, which hold that it was confusing and contradictory to give these two different charges to the jury in a case wherein the State relied upon testimony showing the actual bodily presence of the defendant at the time of and at the scene of the alleged offense, and that under a proper exception, calling the court's attention thereto, the giving of both of such contradictory charges was error.
In this case we find the following as the only objection and exceptions to the court's charge in which it was attempted to be even remotely called to the court's attention:
"1. Defendant objects to the charge for the reason that nowhere in said charge has the court charged on the definition of the law of principals, applying the law to the facts on principals, and charged on the converse of said application of the law to the facts."
In our judgment this objection was insufficient to call the court's attention to the contradiction between his charge on principals and his charge on an alibi; and this contention will be overruled.
Appellant also complains because the court charged the jury relative to the defendant putting the person alleged to have been robbed in fear of his life by the use of firearms, to-wit: a pistol, because, as appellant alleges, the State had waived a death penalty in this instance, and such charge resulted to the prejudice of the defendant. The record contains no such waiver, nor evidence thereof, and again the facts show that the person identified as appellant carried in his hand, at the scene of the alleged offense, an automatic pistol, and the complaining witness stated that he gave up the money because of his fear of death at the hands of these two men and their firearms. We find no objection to such proof, and do not see how the court could have applied the law to the facts in any other manner. We see no error in such action by the trial court.
We find in the record a lengthy brief, by a friend of the court, which contains many matters not embraced in the record, and which can not be considered by us. We can not review this *Page 284 cause on rumors, hearsay and opinion. It must stand upon the record alone, and we have patiently attempted to thus review it.
We see no reason for receding from our original opinion herein, and the motion is accordingly overruled.