Appellant was charged by indictment with the offense of robbery by making an assault upon and fraudulently taking from the person and possession of Hy Locklar seven dollars in money and a watch of the value of sixty dollars. His punishment was assessed at five years in the penitentiary.
The statement of facts in the case is rather brief and shows that Locklar went into a beer stand in the edge of the city of Wichita Falls on Saturday night, April 12, 1941, and, seeing a young man standing there wearing a soldier's uniform, invited him to have a drink of beer, which he did. They then got into Locklar's car and drove to another place and then on the streets of the City of Wichita Falls. Locklar chose his own course and was at no time directed by the soldier in the place he went. While they were on Eighth Street the soldier discovered another party and said to Locklar, "Wait a minute, there's a friend of mine." Locklar stopped and let the party in the car. The soldier was on the front seat with Locklar and the other party got in the rear seat. Locklar said, "I saw the other boy when he got in the car. I didn't get a good look so that I could identify him again." He drove on looking for a place to park. Soon the soldier asked Locklar to let him drive the car. This Locklar declined to do and the soldier hit him on the head, knocking him unconscious. The next thing the witness knew he was in Dallas in a hospital minus the seven dollars which he had in his pocket and also a twenty-three jewel Elgin watch. He later recovered the watch from a pawn shop in the City of Dallas, but there is no evidence about the recovery of the money or any part of it. He said that while the appellant had the general appearance of the person he picked up, "I could not say that was the man. I will not attempt to say for sure this was the man." He also stated that the party from the back seat talked to the soldier boy, but that the witness paid no attention to what he was saying. He was driving on a crowded street and didn't look around. What he heard didn't make any impression on the witness, and "they did not have an opportunity to get together and frame up anything." He further stated that what they were saying didn't affect him (Locklar). They never whispered or anything like that. There was nothing suspicious about their conduct. Neither the soldier nor appellant had anything to do with the witness driving up Eighth Street. They were in the business district in the main part of town when the blow was struck and it was the *Page 128 second blow that knocked him unconscious. He was positive that the soldier hit the first blow, but he does not say who hit the second.
Early Sunday morning before daybreak appellant was seen driving Locklar's car with a soldier boy in the front seat and a man in a bloody condition tied in position in the rear seat. A young man at the service station discovered this condition and took the number of the car, reporting it to the officers. He identified appellant as the party driving the car. A patrolman saw Locklar at a street crossing about five o'clock in the morning in a bloody condition and took charge of him, carrying him to the emergency hospital. Some time during Sunday morning the police of the City of Dallas found the car in question wrecked and apparently abandoned. Appellant had blood on his shirt at this time. This fact we regard as a suspicious circumstance, but by no means sufficient to support a finding that he was present when the crime was committed and that he took a part in it.
The evidence does not disclose where appellant was arrested, whether or not he had any money, and there is no evidence connecting him with the sale of the watch to the pawn broker. It appears that the circumstances of the case exclude the possibility that the robbery could have been the result of previous plans between Stockwell and appellant. The only possible connection which the evidence may show that appellant had with the crime was his driving the car which belonged to Locklar and the strong probability that Locklar lay wounded and unconscious in the car at the time. The question then is: Do the circumstances, considered together, sufficiently connect appellant with the offense of taking the money and the watch?
The testimony of Locklar excludes any connection which appellant may have had with the offense prior to the time he was knocked unconscious by the second blow. He is not shown to have had any connection with the money or the watch at any time. The court charges properly the law of principals, but we are unable to find the facts in evidence supporting the jury's finding on such charge. It may be that the evidence would have supported the finding by the jury had it not been for the testimony excluding any previous plan and also any participation in the assault made upon Locklar. *Page 129
It is our conclusion that the evidence is insufficient to support the jury's verdict finding the appellant guilty of the offense charged in the indictment.
The judgment of the trial court is reversed and the cause remanded.