On Motion for Rehearing.
LATTIMORE, J.The state urges that the evidence, aside from that of the accomplice, does tend to corroborate said witness, and that the case should have been affirmed. In the light of the motion, we have again carefully analyzed the testimony. The state introduced four witnesses. Lindley swore only 'to the fact of the attack upon him and the attempt to rob him by Henderson. Henderson swore to the same facts, but, in addition, asserted that appellant conspired with him to commit the robbery, carrying him in a truck to the scene, was to have aided in its commission, and was left by him in a truck '40 or 50 yards from where he caught the street car, just before the attempted robbery. Morris heard the shots fired In said attempted crime, came out of his house, and saw a truck 150 or 160 feet from said street car, which drove away north, but did not see any occupant thereof. He said it was an old truck with ragged curtains. Nelson arrested appellant a day or two after the attempted robbery while the latter was driving an old truck with ragged curtains. Henderson swore that he and appellant had exchanged headgear before the attempted robbery with a view at concealing their identities. Nelson found at appellant’s home, after the latter’s arrest, a cap. On the trial both appellant and Henderson identified said cap and a hat worn by appellant at the time of the commission of the crime, which Henderson claimed they had exchanged for the purpose mentioned; appellant claiming that they had swapped the hat and the cap that afternoon, he paying Henderson $1 boot. Appellant admitted being in the neighborhood of the robbery that night, claiming that he went out to see a Mrs. Burke,' and that Henderson asked appellant to take him in the latter’s truck to a point where he could catch a street car. Appellant said he and Mrs. Burke were in the truck together, and let Henderson out at the point desired, and that as they drove away Mrs. Burke said she heard some shots. This is a condensed statement presenting all the corroborating testimony.
If it be conceded that appellant drove Henderson in his truck to the point where the latter got out, and then went 150 or 160 feet to where he boarded a street car, after which Henderson made an attack upon the street car motorman with a pistol with the purpose of robbery, this would not of itself, aided by Henderson’s testimony, make out a case sufficient to justify the conviction of appellant. The proof aside from Henderson would have to show that appellant knew the criminal intent of Henderson, and was acting with him in the criminal enterprise, and was present for the purpose of doing some part in same. As we understand this record, there is no testimony at all supporting such proposition save that of Henderson.
Being unable to agree with the contention made in the state’s motion, same will be overruled.