ON MOTION FOR REHEARING.
LATTIMORE, Judge.Appellant again urges that it was error to refuse him a continuance. In addition to what we originally said, and as upholding the discretion of the trial judge in his conclusion that there would likely not have been a *18different result had the absent witness been present and testified, we observe that the State, in supporting its controversy of the application for continuance, presented the affidavits of two doctors who knew the absent witness, — who was appellant’s mother, — both of whom swore that in their opinion, based on examinations, the absent witness was mentally incapable of making a credible witness, and that this condition was permanent. We further note that in the statement of said witness made before the grand jury in February, 1934, relating to the whereabouts of appellant on the night of the alleged robbery on December 18, 1933, she said that unless she was mistaken he was at home all day on the 18th, and that he generally slept with his father. This statement of her knowledge of appellant’s whereabouts on the night of the robbery, was very different from the positive terms of the affidavit made by her in support of the application for continuance. Further upon the same question of the likelihood of her testimony causing a different verdict, we note that Gilbraith positively identified appellant as the man who broke the glass in the back of the cab of his truck and robbed him of a large sum of money about 2 or 3 o’clock A. M., on the night of December 18th, and that Flowers, the accomplice witness, swore that he picked up appellant that night at Wichita Falls and carried him on his truck to near the scene of the robbery, where Gilbraith was stopped on the road by witness blinking the lights on his truck, — an accustomed signal between them, — and that appellant; at said place of stoppage, got from witness’ truck and on to the back of Gilbraith’s shortly before the robbery. Flowers also swore that appellant’s sister sent appellant a wire from Houston that they would be by Wichita Falls that night. The robbery of Gilbraith appears to have been planned by Flowers, appellant and the sister of appellant. A tourist camp man testified that a boy or man came to his camp that night and got a cabin, asking to be waked when Flowers came. He testified that when Flowers came witness told him the boy was in the cabin, and Flowers went back toward the cabin.- It thus appears that no one could have known that Gilbraith would come by at that time of night except some man who had information. Who could have been on the back of Gilbraith’s truck at such an hour in the night but some one who knew he had sold cotton and had money? The conclusion is forced that some one informed and acting with Flowers and appellant’s sister, committed the robbery. We do not think there was any abuse of the discretion of the trial court in refusing the continuance.
*19• Renewed complaint appears of the refusal of the trial court to charge on circumstantial evidence. The fact that Gilbraith told parties soon after the alleged robbery that he did not know who robbed him, and that on this trial he positively identified appellant, would in no way make the case one of circumstantial evidence.
It is now shown that bill of exception No. 10, referred to in our original opinion as not approved by the trial court,— was in fact so approved, the clerk of the court below having failed to properly copy said bill in the transcript. Complaint is made therein of the introduction in evidence of a certain telegram of date December 17th, addressed to Heber Johnson, Box 909, Vernon, Texas, which is copied in our former opinion. The statement of facts shows that the witness Flowers read or stated the contents of said telegram to the jury before the State offered same, and then said that Gladys Johnson told him, witness, that she sent it, and signed witness’ name to it, — after which the State offered the telegram in evidence. Objection was made to the statement of Flowers that Gladys Johnson told him that she sent it, etc., also to the introduction of the telegram. It is the well settled rule in this State that what is done or said by any party to a conspiracy, in furtherance of or pursuant to the common object, if done or said before the conspiracy is consummated,- whether done or said in the presence of other conspirators or not, is admissible against anyone or all of such conspirators. The subject is fully discussed in Sapp v. State, 87 Texas Crim. Rep., 606 That Gladys Johnson was a conspirator with Flowers and her brother, this appellant, appears reasonably plain, and her declaration concerning the telegram was of a fact in furtherance of said conspiracy. Said declaration described the telegram, and sufficiently identified it. Further, however, we note that appellant introduced a number of telegrams addressed to the same box number at Vernon, Texas, which were sent by Flowers to Gladys Johnson, appellant’s sister, who appears to have lived at the same home as appellant in Vernon. There is another legal proposition involved which has application. The information in the telegram was acted upon apparently by appellant. He lived in Vernon, some fifty or sixty miles from Wichita Falls, the telegram being sent to Vernon. If Flowers’ testimony corroborated by that of witness Weseman, be believed, appellant was in Wichita Falls waiting for Flowers and Gilbraith on the night of the robbery, same being the Monday night referred to in the telegram. The inference of receipt of the telegram by appellant is strongly *20supported by his action in going to Wichita Falls that night. Terrell v. State, 88 Texas Crim. Rep., 599; Kachel v. State, 96 Texas Crim. Rep. 86; Hollingsworth v. State, 80 Texas Crim. Rep., 299. As said, in substance, by this Court in Conner v. State, 23 Texas App., 378, the chief object in the introduction of the telegram was to show that it was in fact received by appellant, was by him acted upon as a part of his conspiracy with Flowers, who was in Houston with Gilbraith, — the party who was known to Flowers to have the money, and who was to be in Wichita Falls that Monday night with Flowers. A qualification to this bill further states that it was shown to the trial court that said telegram was delivered at the home of appellant on December 18, 1933.
We have examined the record further in the light of appellant’s insistence that the court should have more fully submitted the issue of his defense founded on the proposition that Gilbraith consented to the alleged robbery, — but we are not able to agree that the charge is erroneous upon this question. The facts in this case and that of Pate v. State, 239 S. W., 967, are wholly different. Said case was reversed on its facts, and it is true that in so doing we called attention to a charge in some respects like the one here given on the question of corroboration of an accomplice, which we criticised. Upon facts such as are before us in this case, we would not be inclined to hold such charge reversible error. We commend to the careful attention of trial judges what we said in the opinion in the Pate case, supra, in view of which there would seem small excuse for giving a charge which on facts less cogent than here, might necessitate a reversal. Fortunately in this case, in addition to the testimony of the accomplice, there was direct testimony from Gilbraith that appellant was the robber, and also other corroborative testimony.
We see nothing in appellant’s complaint of paragraph 7 of the court’s charge, which merely told the jury that if they did not find appellant guilty “Under the foregoing instructions, you will find him not guilty.” In the foregoing instructions the court had applied the rule of reasonable doubt to the facts, as he did also in subsequent parts of the charge.
We have considered all the matters raised by appellant, but are constrained to believe the case correctly decided, and the motion for rehearing will be overruled.
Overruled