The conviction is for robbery. The penalty assessed against Lee Morris and Boggus Underwood was 15 years confinement in the penitentiary, and the penalty assessed against appellant Clay Russell was confinement in the penitentiary for seven years.
Ray Cannon, the injured party, testified, in substance, as follows: Between 8 p. m. and 9 p. m. on the 17th of November, 1935, two men came into the Texaco filling station where the witness was at work, exhibited a pistol and forced him to deliver to them two dollars. When these men came to the station the witness was outside. After one of them exhibited a pistol the witness was required to go inside the station where his wife was. He and his wife were then made to get down on the floor on their stomachs. After securing the money the two robbers took hold of the telephone and pulled it off of the wall. The witness positively identified appellant Boggus Underwood as the man who exhibited the pistol. Mrs. Ray Cannon, wife of the injured party, gave testimony substantially the same as that of her husband. She went further, however, and positively identified appellant Clay Russell as one of the robbers.
Neither Mr. Cannon nor his wife saw Lee Morris on the occasion of the robbery. The testimony relied upon by the State to connect him with the robbery merely shows that he was with the other appellants at the home of W. T. Brown between 7:30 p. m. and 8 p. m. The three appellants left said place together and returned together about 10 p. m. The following morning they left the place together. In short, the State relied upon testimony to the effect that appellant Morris was with the other appellants before and after the robbery. We are constrained to hold that the testimony is insufficient to sustain the conviction of Morris.
Appellant Clay Russell testified and entered a denial of guilt. Appellant Underwood did not testify. The testimony of witnesses for the appellants raised the issue of alibi.
As to the appellants Underwood and Russell the evidence is deemed sufficient to support the conviction.
In their motion for new trial the appellants set up newly discovered evidence. It appears from the testimony adduced on the motion that after the conviction of appellants, Randall *340Hallcomb made a confession in which he stated that he, Ted Smith and Jack LaRue committed the robbery. According to said statement, they drove to the filling station in a Buick automobile. He and LaRue went inside. The victim of the robbery and a woman were inside of the station when they entered. The woman sat in a chair during the time the robbery was being perpetrated. After committing the robbery they did not pull the telephone off the wall. After making said statement Hallcomb was convicted in another case and given a suspended sentence. Thereafter he repudiated the confession found in the present record, and declared that he had been induced to make same by the appellants.
The State did not rely upon circumstantial evidence as to the appellants Underwood and Russell. They were positively identified by the injured party and his wife. The rule is that the declarations of a third party admitting his guilt of the crime for which the accused is upon trial are admissible where the State is relying solely upon circumstantial evidence and the guilt of such party is inconsistent with the guilt of the accused, and the facts show that such party was so situated that he might have committed the crime. Proctor v. State, 25 S. W. (2d) 350; Wise v. State, 273 S. W., 850; Stone v. State, 265 S. W., 900. As the State did not rely upon circumstantial evidence as to Underwood and Russell, the confession of Hall-comb would not be admissible in their behalf. There is nothing in the record to show that Hallcomb would testify as- a witness on another trial. On the contrary the record discloses that he had repudiated his confession and would not testify that he had committed the offense.
As to appellants Underwood and Russell, the judgment is affirmed, and as to appellant Morris the judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.