— The offense is robbery; the punishment, confinement in the penitentiary for five years.
Curtiss Butler, the alleged injured party, testified, in substance, as follows: During the month of July, 1934, the witness, appellant and Red Jordan entered into an agreement whereby appellant and Jordan were to deliver to witness two hundred dollars in counterfeit money upon the payment by witness to them of approximately sixty-five dollars. On the day of the robbery appellant advised him that he would be unable to get the counterfeit money until the following day. However, he asked the witness if he had his money, and further, if he would be willing to deliver the money to Red Jordan that night. The witness replied in the affirmative. This conversation took place in witness’ room in a hotel. Shortly after appellant left Jordan came to the room and asked the witness if he had the money. When he answered in the affirmative Jordan exhibited *3a pistol and ordered him to deliver the money to him. He handed Jordan sixty-five dollars. Appellant was not present at the time. The witness followed Jordan downstairs and observed appellant sitting in an automobile near the hotel. Jordan entered the automobile with appellant and they drove away.
Appellant did not testify but introduced witnesses whose testimony raised the issue of alibi. The wife of the proprietor of the hotel testified that Butler called her about four o’clock in the morning and told her he had been robbed. She asked him about the occurrence, but he was unable to give her any of the details. However, he exhibited an envelope which contained blank paper, and stated to the witness that he had been robbed of sixty-five dollars.
Appellant timely and properly excepted to the charge of the court on the ground that nowhere therein were the jury instructed on the law of circumstantial evidence as it applied to the guilt of appellant. It is seen from an examination of the evidence that there was no direct testimony indicating a conspiracy between appellant and Jordan to rob Butler. That Jordan committed the robbery was shown by the testimony of the State. Also the testimony of the State was to the effect that appellant was not immediately present, but was sitting in an automobile near the hotel. Manifestly, the State relied upon circumstantial evidence to establish appellant’s principalship. In murder cases this court has uniformly held that when the actual killing is done by another, the mere presence of the accused does not deprive him of the privilege of having his criminal connection with the offense determined by the rule of circumstantial evidence. See Henderson v. State, 48 S. W. (2d) 271. We perceive no reason for laying down a different rule in a robbery case where the principalship of the accused depends entirely upon circumstantial evidence. Hence we are constrained to order a reversal of the judgment.
The judgment is reversed and the cause remanded.
Reversed and 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.