Appellant was indicted for the robbery of one John Rowe. He was indicted as a principal offender. He did not perpetrate the deed himself, but it was perpetrated in fact by one Williams. In brief, the evidence as far as it implicates defendant is that Williams and defendant were together in the saloon and drank with the assaulted party, saw his money when he pulled it out to pay for the drinks, and put it back in his vest pocket. After Rowe left the saloon and had gone but a few steps outside, Williams seized him from behind and robbed him. Whilst Williams was robbing him Rowe called to Golden, who was not far off, to help him, and Golden, the defendant, replied “ it was none of his funeral,” or something to that effect. This was all that was said or done by defendant.
Does this evidence show that the parties were acting together? or that defendant, being present and knowing the unlawful intent of Williams, aided him by acts or encouraged him by words or gestures ivhilst engaged in the commission of the unlawful act? (Penal Code, arts. 74, 75.) We can scarcely think so. From the time these parties had first met and taken the drink together, Williams and defendant would hardly have had time to form a conspiracy to rob Rowe. Golden’s remark when called upon for help may appear, and doubtless was, most heartless,— “ it is none of my funeral,” — but it rather indicates that he wished to have nothing to do with the matter than that he had a hand or was taking a part in it. Williams is shown to have been physically a powerful man, and defendant’s refusal to go to Rowe’s assistance may have been incited by his cowardice and fear of Williams. His bare presence at the time is not sufficient, nor is his failure to give alarm, his silence, inaction, and supposed concealment of the offense. (Burrell v. The State, 18 Texas, 713; Tullis v. The State, 41 Texas, 598; Ring v. The State, 42 Texas, 282; Truitt v. The State, 8 Texas Ct. App., 148.) We are of opinion the evidence was insufficient to warrant the conviction upon the charge that appellant was a principal offender.
Over objections' of defendant, the State was permitted to prove that on the next day after the robbery defendant was seen going into a house with a hatchet in his hand, and that he opened the door and let Williams out, and told the witness “ for God’s sake not to say anything about it or Williams might go to the peniten*640tiary.” Had the defendant been indicted as an accessory, this evidence would have been legitimate to show that he was concealing or endeavoring to conceal the offender and aiding him. to evade arrest. (Penal Code, art. 86.) But it did not tend to support the indictment in this case. Under the indictment the defendant could only be found guilty as a principal, and under it he could not be convicted as an accessory, or upon evidence which alone showed him guilty as an accessory. (Truitt v. The State, 8 Texas Ct. App., 148; McKean v. The State, 7 Texas Ct. App., 631; Simms v. The State, 10 Texas Ct. App., 131; Bean v. The State, 17 Texas Ct. App., 61; 1 Bish. Crim. L. (7th ed.), § 663.)
It was error to admit this evidence in support of the charge as laid in the indictment, without a distinct understanding as to the purposes of its admission, and doubly so when the court failed to instruct the jury with regard to the purposes of its admission. It could only, if at all, have been admitted as a circumstance to be considered, in connection with the other evidence, in determining the existence of a conspiracy and acting together at the time of the robbery, and wTas not in itself sufficient to establish such conspiracy.
Because the court erred in admitting this evidence, and because the evidence is insufficient to support a verdict and judgment of guilty for the offense stated in the indictment, and for which appellant has been convicted, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 26, 1885.]