We have again examined into the legal propositions presented in appellant's motion for rehearing and the able oral argument of his counsel in support thereof, and have also reviewed the evidence, having in mind the points thus urged.
It is insisted that our original opinion was erroneous in the disposition made of the questions raised by bills of exception four and five relating to the charge given and special charges refused. The point urged by appellant is illustrated by the opinions in Clark v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 556; Steed v. State, 43 Tex.Crim. Rep., 67 S.W. Rep. 328; Davis v. State, 55 Tex.Crim. Rep., 117 S.W. Rep. 159; Armstead v. State, 48 Tex.Crim. Rep., 87 S.W. Rep. 824; Silvas v. State, 159 S.W. Rep. 223; La Fell v. State, 69 Tex.Crim. Rep., 153 S.W. Rep. 884. An examination of these authorities reveals that all of them are cases depending upon circumstantial evidence where the testimony raised the issue whether the accused was present when the offense was committed. In each case the trial court told the jury in substance that if the offense was actually committed during the existence and in the execution of a common design and intent of all, then all would be guilty as principals whether or not infact all were actually, bodily present when the offense wascommitted. Having given this charge the court then refused to instruct the jury that accused, being indicted as a principal only, he could not be convicted under said indictment although the jury might find him to have been an accomplice or accessory in the crime, or the receiver of stolen property, as the case might be. The propriety of giving such *Page 256 charge under the circumstances shown in the respective cases was questioned, and the refusal of the special charges was held erroneous. The present case is one in which the state relied for conviction upon circumstantial evidence, and also where the presence of appellant at the commission of the offense was questioned, but the charge on principals in this case was entirely different from that given in the cases referred to. The court here told the jury that all parties were principals who acted together in the commission of an offense, and that when an offense was actually committed by one person, butanother was present and knowing the unlawful intent, aided by acts or encouraged by words or gestures, the one engaged in the commission of the unlawful act, such person so aiding or encouraging would also be a principal offender. In the next paragraph of the charge the jury was told if they entertained a reasonable doubt whether appellant broke and entered the house, to acquit him. We think the charge as given clearly informed the jury that before appellant could be convicted he must have been present and engaged in breaking and entering the house. It follows that in our opinion the refusal of the special requested charges does not call for a reversal of the judgment.
After again reviewing the fact we think the jury was warranted in concluding that the exculpatory statements contained in appellant's confession were not true.
The motion is overruled.
Overruled.