Appellant was convicted of robbery, and given five years in the penitentiary, and brings his case here on appeal.
Heretofore the judgment in this case was reversed and the prosecution dismissed, because there was not incorporated in the record the indictment and charge of the court. Motion for rehearing was filed by the State, and a continuance of the case asked, in order to substitute said indictment and charge in the lower court. When the substitution occurred the original papers were found. A complete transcript has been prepared, and is now before us.
There are but two bills of exception in the record, — one to the admission of testimony, and the other to the failure of the court to exclude the same testimony upon motion of appellant. By these bills it is shown that Bernal (the alleged assaulted party) and one Duran were returning front Juarez, just across the river from El Paso, into Texas, and after crossing the river to the Texas side, Duran attacked Bernal with a rock and knocked him down, and as he did so, some one sprang from the bushes and also struck Bernal; that from said assaults he became insensible, and his horse and saddle were taken from him while in this condition. This testimony was objected to for the reason that no connection was shown between defendant and Duran, and there was no proper predicate laid to admit it. It will be observed that the bill does not state as a fact that there was no connection between the defendant and Duran, but it is simply stated as a ground of objection. If, as a matter of fact, there was no connection between the parties, this should have been explained and set out in the bill; that is, sufficient of the testimony should have been stated in the bill to show the want of connection between Duran and his confederate in the assault. The *Page 67 statement of facts is not before us. It may have been overwhelmingly proved upon the trial that Duran and appellant acted together in the commission of the offense, and in pursuance of an agreement. The status of the admitted evidence, as shown by the bill of exceptions, does not exclude this idea; and, as before stated, the testimony may have shown conclusively that the parties acted together, and in pursuance of an agreement to do just what was done. The criticism of the charge as found in the motion for a new trial will not be discussed in the absence of a statement of facts. As the record is before us, the motion for rehearing is granted, and the judgment is affirmed.
Motion granted and affirmed.