Appellant makes an appealing motion. We find in the record no bill of exception complaining of any error of procedure, except the overruling of the motion for new trial. There was not an exception taken to the charge of the court. It is not claimed that appellant is mentally deficient, or that he is of such age as not to be able to know how to protect himself.
Appellant complains in the motion of what he is pleased to call a fundamental error in the charge of the court. He supports this contention by citing the cases of Jenkins et al. v. State, 69 Tex.Crim. Rep., 155 S.W. 208, and Maldonado et al. v. State, 70 Tex.Crim. Rep.,156 S.W. 647. The court charged the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendants, or either of them, * * * did unlawfully and wilfully make an assault upon the person of Altiss Blair, and fraudulently take from his person and possession $6 in money, etc., they will find the defendants guilty as charged, and assess their punishment at, etc. This paragraph of the charge wound up with the statement: "If you do not find the defendants or either of them guilty under the foregoing charge, then you will find them, or him not guilty and so say by your verdict." It is urged that this charge authorized the jury to convict both of these defendants upon their belief that either one of them was guilty. Such a charge is manifestly incorrect, and upon facts such as appear in the two cases cited by appellant would seem to be capable of injuriously affecting the rights of at least one of said parties. The instant case entirely differentiates itself upon its facts from the said two cases cited. In the case before us there was no claim that the act alleged to have been a violation of the law, was in fact committed by one of said parties, and that the other had nothing to do with it. In the case before us both defendants on trial testified and each denied for himself and his co-defendant, any guilty participation in the transaction. Each for himself and his co-defendant denied that there was any robbery, or that any money was taken by either of them from the prosecuting witness. The prosecuting witness affirmed while on the stand that both of said defendants assaulted him, and both of them participated in the taking of his money, and testified to a state of facts which, if true, showed beyond any possibility of doubt *Page 586 the guilt of both parties. We are forbidden to reverse cases for errors in the charge unless in our judgment, upon review of the record, we are led to believe such errors capable of injuriously affecting the rights of the accused. We do not see how it could be possible that said charge given by the court, though concededly not in proper form, could have, — under the above facts, — hurt the accused.
This court could not possibly set a premium upon ignorance or carelessness on the part of one accused of crime who failed to use due diligence to provide for himself an attorney, when arrested and charged with crime. Nor can the courts undertake to give to one who has made no effort to procure an attorney, any advantage as the result thereof over those who have been diligent in preparing their defense, — by setting aside judgments which appear to be on full and sufficient testimony, apparently for the only reason that the accused was not represented by counsel on the trial. The parties, one of whom is this appellant, were not charged with a capital crime, and in such case no duty rested upon the trial court to appoint an attorney to defend them.
We have given due consideration to each of the complaints in the motion for rehearing, but feel constrained to hold that proper disposition was made of the case in the original opinion, and the motion for rehearing will be overruled.
Overruled.