The defendant was indicted in this case for robbery, under article 2379, Paschal’s Digest. He was found guilty, and his punishment was assessed at confinement in the penitentiary for seven years. The defendant *610made a motion for new trial, which was overruled, and the case is now before this court on appeal.
The first question that presents itself for our consideration is the action of the court in overruling defendant’s motion to quash the indictment, because . “ there is no offense against the laws charged therein.” It is submitted on the part of the defense that, the indictment being for robbery, the pleader should, under our statute (Pasc. Dig., art 2379), have alleged the connection between the assault committed, or violence used, and the fraudulent taking of the property; and that this can only be done by using the preposition “ by,” or some word of similar import. The indictment follows substantially the common-law precedents, and is sufficient. 1 Whart. Prec. 410; Stark. Cr. Pr. 442; 2 Archb. Cr. Pr. & Pl. 521; Pasc. Dig., arts. 2863, 2865.
The second question presented is as to the charge of the court. The defendant’s counsel, both in his brief and oral argument, contends that the charge of the court is too vague and general in its terms, and is not an exposition of the law of the case as made by the proof. Paschal’s Digest, article 3059, of the statute, reads as follows, to wit: “ After the argument of any criminal cause has been concluded, the judge shall-deliver to the jury a written charge, in which he shall distinctly set forth the law as applicable to the case ; but he shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony. This charge shall be given in all cases of felony,, whether asked or not.”
The following is a copy of the charge of the court: “ The defendant is on trial for a robbery alleged to have been committed on the 18th day of August, 1876.
“1. Robbery is thus defined: If any person, by assault or by violence, and putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property, with intent to appropriate the same to his own use, he shall be punished by confinement *611in the penitentiary for a term, of not less than two nor more than ten years.
“2. If you believe from the evidence that the defendant, in the county of Dallas, within five years before the finding of the indictment against him, did commit the robbery as charged in the indictment, or that he participated in the same, you will find him guilty and assess his punishment as aforesaid.
“3. The defendant is presumed to be innocent till proven guilty by competent evidence.
“ 4. If from the evidence you have a reasonable doubt of the guilt of defendant, you will give him the benefit of the doubt, and acquit.
“5. You are the exclusive judges of the evidence and the credibility of the witnesses, and will give to the testimony of each such weight as you think it entitled to.”
A charge ought not only to be correct as an abstract enunciation of the law, but be' so explicitly adapted to the pleadings and the proof as not to be misunderstood by the jury in their application of the law to the facts in evidence. The charge in this instance was a short one. It was a correct enunciation of the law as applicable to the facts in the case, and, in our judgment, could not have misled the jury. Counsel for defendant, in his argument, calls attention to the second subdivision of the charge, and says it is defective in this, that the words “ participated in the same ” are not sufficiently qualified or explained by the court.
The evidence shows that a robbery was committed, and that several persons took part in it, and that the guilty parties immediately afterwards were seen running from the bank where it was committed. There was a conflict in the evidence as to whether or not the accused was one of the guilty parties. Take the charge as a whole, and the words “ participated in” admit of no doubtful construction, and could not have misled the jury. “ Participate ” is derived *612from two Latin words, “pars,” part, and “capio,” to take. It means to take part—to share in common with others. This portion of the charge was especially proper in view of the defense which was mainly relied on, to wit, an alibi. No bill of exception was taken to the charge of the court. The court did not err in refusing the special instructions asked by the defendant.
On the trial of the cause in the District Court, the county attorney asked a witness the following question : “ Was the defendant armed the night he was arrested, being the night after the robbery ? ” To this the defendant objected ; which objection being by the court overruled, defendant excepted, and took his bill of exceptions. The bill of exceptions does not show on what grounds defendant excepted to the testimony. A reference to the statement of facts will show that defendant’s objection was not well taken. It shows that one of the robbers, when first seen in the bank, struck E. H. Gruber, the president of the bank, a severe blow over the head with a pistol, and then shot at him. The condition of this pistol found on the person of the accused presented the appearance of having been used in striking a severe blow ; the rod under the bottom of the barrel, used for ramming the bullets in the cylinder, was bent so that it touched the barrel. It was proper evidence to go to the jury, as a circumstance tending to identify the defendant as one of the robbers.
On the trial in the court below, after both parties had announced that they had closed their evidence, the county attorney offered in evidence the charter and by-laws of the State Savings Bank, to which the defendant objected; which objections were by the court overruled, and the evidence was admitted. To this ruling of the court the defendant O took a bill of exceptions. The bill of exceptions does not show that the evidence was admitted after the argument to the jury had concluded, and was, therefore, not well taken. *613Article 3046, Paschal’s Digest, provides as follows : “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.” Jones v. The State, 3 Texas Ct. App. 153.
We believe there is enough in the record to show that a robbery was committed, and the amount of money taken by the robbers ; that the money taken was the property of the State Savings Bank, and was taken from the possession of E. H. Gruber, the president of the bank, forcibly and without his consent; and that every material allegation in the indictment was proven.
There is a conflict in the testimony. The jury had all the evidence before them. They saw the witnesses on the stand, heard their statements, and observed their manner of testifying. The district judge who presided at the trial overruled defendant’s motion for a new trial. The district judge and the jury were in a better position to decide properly the weight and degree of credit to be attached to the testimony of the different witnesses than we can. be by an inspection of the record.
This disposes of all the points presented in the record upon which the defendant relies for a reversal of the judgment.
Believing that defendant has had a fair and impartial trial, and been legally convicted, the judgment of the lower court is affirmed.
Affirmed.