1. Appellant's motion in arrest of judgment based on the supposed insufficiency of the indictment was properly overruled. It sufficiently charged the crime of robbery under our statute and decisions. Penal Code, art. 722; Willson's Crim. Stats., sec. 1248.
2. Appellant was alone indicted in this prosecution for the robbery, but the evidence disclosed most fully, as we think, that his brother, one A. A. Clark, was a joint and principal offender with‘him, acting with him prior to, at the time of, and subsequent to the commission of the crime. Both parties were arrested and tried before an examining court for the crime. Appellant’s first bill of exceptions, reserved at his final trial in the District Court from which this appeal was taken, shows that the prosecution proposed to prove by one Prewitt that about ten days after the robbery he, Prewitt, arrested the defendant's brother, the said A. A. Clark, and found upon and took from the person of the latter a pistol, which Churchwell, one of the parties robbed, identified on the examining trial as the pistol taken from him by the robbers. A pistol was by the indictment alleged to have been taken from the *194together with other property, at the time of the robbery. Defendant’s objection to this testimony was that at the time the pistol was found, upon A. A. Clark the conspiracy, if any, and the crime had been consummated. Whilst it is a well established rule that the acts, conduct, and declarations of one co-conspirator subsequent to the consummation of the conspiracy, are inadmissible as evidence against another conspirator, such rule has never been extended so as to exclude evidence of the subsequent finding of the fruits of the crime in the possession of one of the co-conspirators, whose complicity in the perpetration of the crime has been fully established. It is a circumstance of the most potent character in the identification of the parties, and “any fact or circumstance which would tend to prove the guilt of the co-defendant, would also tend to prove the guilt of the defendant, and would be admissible against him.” Pierson v. The State, 18 Texas Ct. App., 524, is directly in point upon the question as here presented. See also Jackson v. The State, ante, p 143. This testimony was legal and admissible, but defendant’s bill of exceptions shows that his objection to the evidence was sustained by the court, and the witness was not permitted to testify to the fact.- Under such circumstances we are at a loss to know why defendant’s counsel have preserved the bill, and of what they can complain with reference to the matter.
3. The same may be said of defendant’s second bill of exceptions. On -objection of defendant to the proposed testimony of Satterwhite as to matters told him by the witness Charley -Clark—because hearsay—the objection was promptly sustained, and Satterwhite was not permitted to testify. As to the witness Charley Clark, he denied most positively that his brothers at their examining trial had told him of the whereabouts of the pistol, and denied that he had gone to the place of its concealment, found it, and carried it away. If the prosecution'had reason to believe that the defendants had so informed Charley Clark, and had induced him to go and get the pistol, and take it away, the State’s counsel had the undoubted right to question him upon the subject. If the weapon, being fruits of the crime, had been found by the witness at the place, and upon the information derived from the defendants, the evidence was admissible, though defendants were in arrest at the time they gave him the information. The prosecution had the right, and it was proper, to question the witness upon the matter, and even if the court, upon the objections of defendant’s counsel, had erroneously refused to allow the questions to be asked, the refusal would not be subject to criticism in this court. McDowel v. State, 90 Ind., 321.
4. The State’s witness Williams was permitted to testify, over objections of defendant, that two days after the robbery he went to the scene of the crime with Taylor, one of the parties robbed, and others, and there examined the foot-prints or tracks around and about the spot, which tracks *195he described; that afterwards he, the witness, was present attending the examining trial of defendants, and noticed the boots of defendant and the shoes of his brother A. A. Clark, then also on trial, and that in his opinion the tracks made at the place of the robbery corresponded with and were made by the boots and shoes of defendant and said A. A. Clark. This testimony was objected to as inadmissible, because it was merely the opinion of the witness, and that opinion is not admissible as evidence.
In his standard work on Criminal Evidence, that eminent law writer Mr. Wharton says the true line of' distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts, but when the facts are not necessarily involved in the inference (e. g., when the inference may be sustained upon any one of several distinct phases of fact, none of which it necessarily involves), then the facts must be stated. In other words, when the opinion is the mere short-hand rendering of the facts, then the opinion can be given subject to cross-examination as to the facts upon which it is based: Opinion as far as it consists of a statement of an effect produced on the mind becomes primary evidence, and hence admissible whenever a condition of things is such that it can not be reproduced and made palpable to the jury.” Whart. Crim. Ev., 9 ed., secs. 458, 459. See also Powers v. The State, 23 Texas Ct. App., 43. In The State v. Reitz, 83 N. C., 633, it was held that opinion as to correspondence of foot-prints with shoes is admissible.
The almost identical question here raised came before this court in the ease of Thompson v. The State, 19 Texas Ct. App., 594: “A State’s witness having described the peculiarity of a certain track seen by him at the place of the homicide, was permitted, over objection, to testify that thereafter, at the examining trial, he saw on the foot of one of the defendant’s alleged accomplices a boot which would have made such a track as the one he saw at said place,” and the evidence was held admissible.
5. In our opinion there is no merit in defendant’s third and fourth bills of exceptions relative to the reproduction of the testimony of C. W. Church well, which had been reduced to writing upon the examining trial, the witness having subsequently died. The justice of the peace was properly permitted to state the circumstances attendant upon the taking of the deceased witness’s testimony, and to identify the same. As to the objection that the justice’s certificate attached to said written testimony is insufficient, it seems that no particular form for such certificate is prescribed by law, and in our opinion the certificate of the justice in this instance, as shown in the record before us, is sufficient. Golden v. The State, 22 Texas Ct. App., 1; Kirby v. The State, 23 Texas Ct. App., 13; O’Connell v. The State, 10 Texas Ct. App., 567; Kerry v. The State, 17 Texas Ct. App., 178; Willson’s Crim. Stats., sec. 2535; Code Crim. Proc., arts. 267, 774. The testimony of the deceased witness Church well, as *196taken and reduced to writing, was properly admitted as legal evidence in. the case.
6. Defendant’s sixth bill of exceptions relates to supposed defects and omissions in the charge of the court to the jury. None of these objections are maintainable. Robbery was defined literally in the language-used in the Code (Penal Code art. 722); and as for the punishment, the-learned trial judge might well, in view of the facts proved on the trial, have added to the definition the latter clause of said article 722, and thereby emphasized the crime denounced where two or more persons are acting-together using and exhibiting firearms and deadly weapons in the accomplishment of their purpose. Correct rules with regard to circumstantial, evidence were clearly announced.
But it is insisted that “the court failed to charge the jury that if the-proof showed that the pistol was taken from the person and possession of' Churchwell alone, and that the money was taken from the person and. possession of Taylor alone, and that Taylor had no interest or property in the pistol, and Churchwell had no interest or property in the money (and this was the uncontroverted proof in the ease), then the jury should acquit the defendant, because such proof would not sustain the allegation in the indictment that said property was taken from both Churchwell arid Taylor.” The allegation in the indictment was that the pistol was the-property of and was taken from the person and possession of Churchwell, and the money was alleged to be the property of and to have been taken, from the possession of Taylor. These allegations as to ownership and possession were specifically proved as alleged, and the charge of the court-conformed the law to the allegations and proof. In robbery “ the indictment may charge the defendant in the same count with felonious acts-with respect to several parties, as with having assaulted A and B, and stolen from A one shilling, and from B two shillings, if it was all one-transaction.” 1 Bish. Crim. Proc., 3 ed., sec. 437; 2 Bish. Crim. Proc., sec. 60.
7. After the jury had been out a day and night considering of their-verdict they sent word to the court by the officer in charge of them that they could not agree. The presiding judge had them brought into the. court room, and stated to them that he did not intend to discharge them,, and that he did not think they had sufficiently considered of the case-The statute makes it a matter of discretion with the court as to whether-it will discharge a jury because they have been kept together such a time-as to render it altogether improbable that they can agree. Code Crim. Proc., art. 701; Willson’s Crim. Stats., sec. 2390. Such discretion is not-revisable in this court unless it has been abused.
8. Defendant’s eighth bill of exceptions complains that the court permitted the testimony of the deceased witness Churchwell, taken at the-examining trial, to be re-read for the third time to the jury after they *197had been in retirement considering of their verdict two days and nights. .Explaining this bill the learned judge says: “ The reading of Church wéll’s testimony was upon the request of the jury to the court, their statement being that they differed as to what Churchwell had testified. The court thereupon caused the reading, as above stated, it having once before upon a similar request been read after the charging of the jury.” We have no statute expressly providing for the reading of the written testimony or deposition of a witness where the jury have disagreed as to such testimony. When the witness has testified orally, he can be recalled to the stand and directed to detail his testimony again to the jury as to the particular point of disagreement, and no other. Code Crim. Proc., art. 697. Where the evidence is by deposition, or in writing, taken on examining trial, we can see no good reason why, if the jury so desire, they can not have it re-read to them where they have disagreed about it. Such written testimony can not be easily altered.
At all events it is to be presumed that it has not been altered until the contrary is shown, and where this is not done we can not perceive how its being re-read in the same identical language could mislead the jury, or unjustly prejudice the defendant. We are unable to see that any error has been committed or wrong done the defendant in this regard, as the same appears in the bill of exceptions.
9. Defendant’s eleventh bill of exceptions complains that the court •permitted one Utterbeck to testify, over defendant’s objections, that three or four hours before the robbery, whilst he, witness, was paying to the prosecuting witness Taylor, at a desk in witness’s store, §125, A. A. Clark, defendant’s brother, and the one who was implicated with him in the robbery, was present in the store within seven or eight feet of Taylor, and could have seen the money paid. Objection to this testimony was that at the time of the money transaction between Utterbeck and Taylor, the defendant was not present, and there was no conspiracy or common design at that time between defendant and A. A. Clark to commit the robbery, and that no circumstance connected with, or act or conduct of, A. A. Clark before the conspiracy was entered into between him and defendant was, or should be admitted as competent evidence against defendant.
“ When two or more persons combine or associate together for the pros-ecution of some fraudulent or illegal purpose, the acts and declarations of any one of them made in furtherance of the common purpose, and forming a part of the res gestee, are admissible as evidence against the others; otherwise, however, as to subsequent acts, admissions, or declara"tions. * * * In regard to the admission of the acts and declarations of one conspirator as original evidence against each member of the conspiracy, substantially the same rule applies in criminal as in civil cases. 'The principle on which the acts and declarations of other conspirators, *198and acts done at different times, are admitted in evidence against the person prosecuted, is that by the act of conspiring together the conspirators, have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the "prosecution of the common design, thus rendering whatever is said or done by any one in furtherance of that design a part of the res gestee, and therefore the acts of all.” 4 Am. and Eng. Encyclopaedia of Law, 631, 632. As between conspirators, antecedent-acts and declarations of each, pending and in pursuance of the common, design, and tending to throw light upon its execution, or upon the motive or intent of its perpetrators, are competent evidence against each and all of them. Cox v. The State, 8 Texas Ct. App., 256. And where a conspiracy has been proved, as we think was most clearly done in this-case, sayings and movements of other conspirators before the perpetration of the crime are admissible against the defendant, though occurring in his absence. Williams v. The State, 24 Texas Ct. App., 17; Anarchist Cases, Ill., 12 N. E. Rep., 865; McKee v. The State, Ind., 12 N. E. Rep., 510.
In this case the fact that A. A. Clark saw Taylor receive the money is; a strong circumstance tending to show that if he was not there to ascertain that very fact in furtherance of a conspiracy already formed to rob' him, that the defendant did know of the receipt of the money by Taylor,, and that that knowledge induced him to enter into the plan already determined upon by his brother A. A. Clark to rob Taylor. But, as intimated above, the evidence tended to show that a conspiracy already existed between the brothers to rob Taylor, and A. A. Clark, as part of the; plan, might have entered the store to assure himself of the fact that. Taylor had received the money. "It was a circumstance going to show motive for the conspiracy. It was a circumstance that the jury had the. right to consider in connection with the other facts, and the court did. not err in admitting said evidence.
We have considered all the questions raised in this case, and have been, constrained to decide each and every one adversely to appellant. We are-of opinion that the record does not disclose any error prejudicial to his. legal rights, and therefore the judgment is affirmed.
Affirmed..
Judges all present and concurring.