ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.Appellant has filed a very pointed and concise motion for rehearing in this cause and his counsel has also made an able oral argument in his behalf. We think the facts as set out in the original opinion would justify the subission of the case to the jury and support the verdict which they returned. The evidence shows that appellant and Phillips were principals and were acting together both before and at the very time of the commission of the offense. At least, there is evidence sufficient upon which the jury might have so found, but this is not the question for our consideration at this time.
Complaint is made that the last part of section five of the court’s charge applying the law to the facts of the case shifts the burden of proof, and that the appellant is not given the benefit of reasonable doubt. Section 5 of the court’s charge reads as follows:
*205“You are further instructed that you cannot convict the defendant, J. C. Osborne, by reason of his mere presence, if he was, at the place where the offense is alleged to have occurred, but before you can convict the defendant you must either find and believe from the evidence beyond a reasonable doubt that Buster Phillips committed the offense charged in the indictment and that J. C. Osborne was present and acted together with the said Buster Phillips in the commission of said offense, if any, or that the said Buster Phillips committed the offense charged in the indictment and that the said J. C. Osborne had advised or agreed to the commission of the offense and was present when same was committed, whether he aided or not in the illegal act, and unless you do so find and believe from the evidence beyond a reasonable doubt that the said Buster Phillips committed the offense charged in the indictment and that the said J. C. Osborne was present and acted with him in the commission of said offense, if any, or that the said Buster Phillips committed the offense charged in the indictment and that the said J. C. Osborne was present and advised or agreed to the commission of said offense, if any, you will find the defendant not guilty.”
Contention is made that Hathcock v. State, 263 S. W. 587, sustains the position on this point which appellant again raises on his motion. This was before us on the original hearing and, while the authority cited is in accordance with decisions of this court in many cases, we cannot see that it applies to the instant case. In the Hathcock case the court did not submit the law of reasonable doubt at all, but instructed the jury what they must find as a fact. In the charge above copied everything is based upon the jury’s finding “from the evidence beyond a reasonable doubt.” In the very section' complained of we find this language and each succeeding phrase connected by “and” and “or” is based upon such finding. This is a matter of grammatical construction which we do not believe could possibly confuse the jury, particularly in view of the many times in the first part of section five, and throughout the charge, that the court has so instructed them. There is no sentence taken alone from which we may find an instruction to the jury where we do not also find the instruction that they must conclude from the evidence “beyond a reasonable doubt.”
We are frank to admit that the case is one with its difficulties. It was before the court for consideration for several weeks and each member of the court has conferred on the *206several points treated in the original opinion with rather unusual care, resulting in the conclusions expressed in the original opinion. We have again given consideration to those questions. emphasized on the motion for rehearing, and believe that the original opinion correctly and sufficiently discusses the propositions presented on the appeal and, so concluding, the motion for rehearing is overruled.