Hodges v. State

*425ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

The State construes our opinion on motion for rehearing as holding that the offense of robbery may be committed only by placing the victims in fear. It was not our intention to so hold, though such is the normal case which reaches this Court. What we did hold was that this record, taken-as a whole, does not show that appellant was a party to any agreement to rob prosecutrix or that he participated in the taking of her property or shared in a division thereof. She testified that appellant’s co-defendant from whom she had gained her freedom had been her pimp and that the journey to the woods was for the purpose of punishing her for having done so. It is evident from her testimony that she was carried back to the pool hall so that all those there assembled might see her shorn locks and her bruised condition. It is clear to the writer that appellant participated in this form of chastisement simply by driving the automobile and nothing more. At one juncture in her testimony she stated that appellant did not take the ring from her, but was over by the automobile playing the radio and walking around. According to her, appellant’s co-indictee’s announced purpose upon leaving the pool hall was: “I am going to take you out in the country and give you what you have had coming for a long time.” There was nothing in that statement to indicate that appellant knew that property was to be taken from her. This is fortified by Officer Shipley’s examining trial testimony, admitted without objection, to the effect that appellant’s co-indictee had stated to him that appellant took no part in the offense except to drive the automobile.

As Judge Hawkins so ably explained the law in Alaniz v. State, 147,Tex_Cr.R. 1, 177 S.W.2d 965, in the absence of a previous agreement or understanding to rob the injured party, participation in a fight with him would not make the accused guilty as a principal to the crime of robbery committed by his companion' unless he knew that his companion intended to take the victim’s personal property. ■ • ;

• So viewing the facts, the State’s motion for rehearing is overruled.