In the motion for rehearing, specific complaint is made of the treatment of paragraphs 8 and 9 of the court's charge, which we quote as follows:
"You are instructed that in this State no person can be convicted upon his statement alone unless you believe, beyond a reasonable doubt, that such statement is true, and that said statement connects the defendant with the commission of the offense, as charged in the indictment, and then you cannot convict the defendant unless you further believe from the evidence, beyond a reasonable doubt, that there is other and additional evidence in the case corroborative of such statement, connecting the defendant with the commission of said offense, as alleged in the indictment, which establishes to your satisfaction, beyond a reasonable doubt, that the offense with which the defendant is charged was committed, and that the defendant is guilty of the commission of said offense. Therefore, unless you believe from the evidence, beyond a reasonable doubt, that the statement purporting to be signed by the defendant, introduced in evidence, is true and that it connects the defendant with the commission of the offense, as alleged in the first count of the indictment, and that you further find and believe from the evidence, beyond a reasonable doubt, that there is other evidence in the case, independent of said statement, and corroborative thereof, which establishes to your mind, beyond a reasonable doubt, that the offense with which the defendant is charged, *Page 354 was committed, and that the defendant committed said offense, as alleged in the indictment, either alone or acting together with Mickey Flynn as a principal, you will acquit the defendant, and say by your verdict not guilty.
"You are further instructed by the Court that when a statement, or confession, of a defendant is introduced in evidence by the State, and when such statement, or confession, contains exculpatory or mitigating statements, then the whole of such a statement, or confession, is to be taken together as true; and, the State is bound by such exculpatory or mitigating statement unless such exculpatory statements or mitigating statements are proven, from the evidence, beyond a reasonable doubt, to be untrue; and, if you have a reasonable doubt thereof, you will acquit the defendant, and return a verdict of not guilty."
The appellant's written confession was introduced in evidence. It appears therein that the appellant resided at 1507 West 15th Street in the city of Plainview, Texas; that he was present at a "crap game" at Joe Ferrell's house on the night of February 14, 1931; that he was acquainted with Joe Kelley, alias Mickey Flynn, and about 3 or 4 o'clock in the afternoon had brought Kelley from the appellant's house to a barber shop, and there provided him with one of the appellant's suits of clothes. About 9 o'clock at night, Kelley was seen by the appellant to pass Pierce's Cafe. At the time of the robbery, the man who committed the offense was not seen by the appellant as his face was turned to the wall. Before returning to his home, the appellant delivered the keys to his automobile to Barto Cawthon. When the appellant reached his home about 6 o'clock in the morning, Kelley was there. From the confession we quote: "When I got home on Sunday morning, this Joe Kelley, or Mickey Flynn, was at my house. This fellow had his hand cut, but I could not say for sure which of his hands it was that was cut, but he had one pretty badly cut. Flynn then told me that he and Barto had framed this hold-up, and that when Barto jumped through the door he got nervous and started shooting. I then tore my clothes off Flynn, and made him get under the house at my place, and I put my clothes down under the house with him. I told Flynn to stay down there under the house, and I fed him two or three times, and Flynn told me about the hi-jacking, and that he give all the money to Barto. The pistol which the officers showed to me last night, was my pistol, and I had gone to town. The last time I saw Flynn he was still under my house, and I have not seen him. Flynn told me that whoever took him was going to take *Page 355 him to out around Melrose, N. Mex. I told my wife to keep Flynn and not let nobody get away with him, and not say nothing about it, and she said she would not. When I first got home, my wife said Mick is in there in the toilet, and I went in there and then is when I tore the clothes off him. I brought Mickey from my folk's house near Clovis to Plainview Saturday."
In criticism of the eighth and ninth paragraphs of the court's charge, appellant claims that the court assumes that the confession was wholly inculpatory in its bearing upon the first count of the indictment, when, according to the appellant's claim, the confession was exculpatory to the effect that the appellant's first connection with the robbery was after its commission. With the appellant's interpretation, we find ourselves unable to concur. The summary of the evidence set forth in the original opinion makes manifest that the conclusion of the jury that the appellant was present at the time the robbery was committed was justifiable. The appellant's presence at the time of the robbery cannot be ignored in appraising his confession as to its bearing upon the issue of a conspiracy. It was upon circumstances that the state relied, and the jury was given a proper charge upon the law of circumstantial evidence. In article 69, P. C., it is said: "Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act."
The evidence adduced upon the trial, including the appellant's confession, is deemed sufficient to have brought the appellant within the provision of the statute mentioned, and warranted the jury in the conclusion reflected by the verdict, namely, that the appellant and Flynn were principal offenders within the meaning of the law. Among the illustrative cases are Rowan v. State, 97 Tex.Crim. Rep.,260 S.W. 591; Coomer v. State, 97 Tex.Crim. Rep., 262 S.W. 495; Middleton v. State, 86 Tex.Crim. Rep..
The motion for rehearing is overruled.
Overruled. *Page 356