Appellant and one Saddler were jointly indicted for theft of a gun. After a severance had at their instance, appellant was first placed upon trial, and, the result being a verdict and judgment of conviction, he appeals.
It is shown by the evidence that the gun was actually taken by Saddler, defendant being present at the time, and that the parties were still in company together an hour or so afterwards, when the gun, which was still in the actual possession of Saddler, was reclaimed and recovered by the owner. No one saw the original taking. In his charge, after instructing the jury as to the law of principals to the effect that all those present. at the commission of an offense, and who, knowing the unlawful intent, aid by act and encourage by words and gestures those actually engaged in its commission, are principal offenders, etc. (Penal Code, art. 75), the learned judge further instructed them in effect that if, however, Saddler stole the gun, and defendant, though present, did not thus aid and encourage him in its theft nor agree thereto, then he would not be guilty, and they would, if they so believed, find him not guilty.
* Upon this point appellant’s counsel requested an instruction which was refused, and which was in these words: “The bare presence of defendant at the time of the taking (if you should find from the evidence that he was present) would not justify his conviction unless the evidence shows that he did some act aiding, abetting, assisting or encouraging the person who did commit the theft.” This instruction was a more direct, affirmative presentation of the law of the case than as it was presented in the main charge, and should, when requested, have been given in connection with the main charge. For the settled law is that “a mere presence is not sufficient, nor is it alone sufficient in addition that the person present, unknown to the other, mentally approves what is done. There must be something going a little further; as, for example, some word or act.” The party to be charged must, in the language of Oockburn, C. J., “incite or procure or encourage the act. His will must in some degree .contribute to what is done.” . . . “ From the proposition that mere presence at the commission of a crime does not render a person guilty it results that if two or more are lawfully together, and one does a criminal thing without the concurrence of *193the others, they are not thereby involved in guilt. But, however lawful the original coming together, the after conduct may satisfy the jury that all are guilty of what is done.” (1 Bish. Crim. L. (7th ed.), §§ 633, 634; Mercersmith v. The State, 8 Texas Ct. App., 211; Stevenson v. The State, 17 Texas Ct. App., 619; Golden v. The State, 18 Texas Ct. App., 637.)
“ Although a man may be present whilst a felony is committed, if he take no part in it and do not act in concert with those who committed it, he will not be a principal merely because he did not endeavor to prevent the felony or apprehend the felon. Whether he was aware of the intention of his companion and participated in it is the fact to be proved in order to implicate him in the criminality of the act.” (Burrell v. The State, 18 Texas, 713.) ISfor will concealment of the offense after its commission be, of itself, sufficient to establish guilt. (Ring v. The State, 42 Texas, 282.) This view of the law was specially called for by the facts of the case, and the jury should have been fully instructed with regard to it. ,
Another error in the charge is one of omission, but of a character uniformly held to be fundamental. The case was one purely of circumstantial testimony as to the original taking, no one having seen either Saddler or defendant take the gun. We find no instruction to the jury relative to testimony of this character.
Several bills of exception were saved by defendant to rulings upon the admissibility of evidence. We will notice but one, inasmuch as the rest are not deemed of sufficient importance to require discussion or even notice.
Over objection by defendant, the State was permitted to prove by one Myers that, a few moments after the theft is alleged to have occurred, the witness went to Beeves, the party from whom the gun is alleged to have been stolen, and told him, Beeves, that he, "witness, had seen two suspicious looking negroes going out of the field, and witness recognized defendant in court as'one of the suspicious parties he had informed Beeves about. Objection was as to the admissibility of the witness’s suspicions as he stated them to Beeves. The exception was well taken and should have been sustained. Whilst it was admissible for Mvers to testify to what he had seen, and for Beeves to testify generally to the fact that from information derived by him from Myers he made pursuit and captured the parties in possession of the gun, statements made by Myers to Beeves, whether as to the facts seen by Myers and his opinions, conclusions or suspicions deduced from those facts, were mere hearsay and inadmissible.
*194[Opinion delivered January 23, 1886.]We have doubts as to. the conclusiveness and sufficiency of the evidence in so far as it relates to the guilt of this appellant. Such doubts, however, might not have occurred had the charge of the court submitted the law to the jury as fully as it is above enunciated.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.