ON MOTION FOR REHEARING.
HAWKINS, Judge.— The State has filed a motion for rehearing urging that we were in error in holding that the court *4should have instructed on circumstantial evidence, in view of a written objection specifically calling the court’s attention to an omission from the charge of any instruction on the subject.
The State relies on Colter v. State, 37 Texas Crim. Rep., 284, and Barnes v. State, 90 Texas Crim. Rep., 51, 232 S. W., 312, as supporting its position that to show appellant guilty as a principal reliance was not had on circumstantial evidence.
In Colter’s case positive evidence was in the record that appellant and three others conspired to rob one Cox. The four got on the same street car with Cox when he started to Oak Cliff from Dallas. The robbery was discussed among appellant and his three companions while they were on the car. When Cox got off the car the four conspirators also got off. They then had a conference and divided into couples and followed Cox. One of the four assaulted and robbed him, the very offense contemplated. The four then ran away from the scene of the robbery. These facts were in evidence from one of the conspirators who testified for the State. Surely under such proof no charge on circumstantial evidence was called for. In Barnes’ case (supra) the positive evidence showed him to have been actively engaged in the assault upon deceased. In our opinion neither of the cases supports the State’s contention that the present case does not depend on circumstantial evidence to show that appellant was a principal in the robbery of Butler, whose story about the transaction is peculiar. He testified that he was not acquainted with appellant and had never met him until he (Butler) reached San Augustine to which place he had gone from his home in Nacogdoches County for the purpose of exchanging sixty-five dollars in good money for two hundred dollars in counterfeit money. The evidence might support a conclusion that one Wall brought appellant and Butler together. The evidence does not show that Butler had.ever .seen Jordan before the latter is claimed to have committed the.robbery.- The inference may be drawn from facts testified to by Butler, that appellant and Jordan intended either to exchange counterfeit money for Butler’s good money, or pretend such exchange, and to such extent were engaged in an unlawful enterprise. But appellant is charged as a principal in the robbery of Butler, which offense was committed by Jordan. There is nothing in Butler’s evidence which would indicate that a robbery was contemplated, or if so, that appellant was aware of it, save as it may be reasoned out or inferred from the facts testified to by Butler. Under such circumstances ■ we believe the principle applicable as announced in Henderson v. State, *5120 Texas Crim. Rep., 361, 48 S. W. (2d) 271; Duke v. State, 117 Texas Crim. Rep., 381, 36 S. W. (2d) 732; Joyce v. State, 90 Texas Crim. Rep., 265; 234 S. W., 895; Burrell v. State, 18 Texas, 713 (decided in 1857); Anderson v. State, 85 Texas Crim. Rep., 411, 213 S. W., 639; Early v. State, 50 Texas Crim. Rep., 344; Pizana v. State, 81 Texas Crim. Rep., 81, 193 S. W., 671. In Burrell’s ease, who was tried jointly with Burns for killing Bird, the evidence showed that Burrell fired the shot. Burns was present, but his participation as a principal was only shown by proof of circumstances. So, in the present case, Jordan perpetrated the robbery — if one was committed — and conceding that appellant was present bent on some unlawful enterprise, his participation as a principal in a robbery is shown only by proof of circumstances. They may justify the jury in finding that he was a principal, but the court should have responded to the exceptions to his charge calling attention to the necessity of an instruction on the law of circumstantial evidence as it related to appellant’s claimed connection with the specific crime of robbery to guide the jury in passing on the question.
The motion for rehearing is overruled.
Overruled.