The judgment was affirmed at the recent Dallas term, and is now before us on rehearing. Appellant insists that the court erred in failing to pass upon and sustain appellant's eighth assignment of error, which complains that the court below erred in not submitting to the jury defendant's theory of defense to the theory of the case upon which he offered proof. Appellant's defense as insisted, was that his companion assaulted prosecutor, and that he (appellant) merely intervened to prevent his companion injuring or inflicting injury upon prosecutor; that he had no knowledge of or part in the robbery. The court should have charged the jury on this distinct issue. However, in the charge of the court we find this language: "The mere presence of a party at the time and place where a crime is committed, does not constitute a party a principal; he must be present at the time and place with a knowledge of and participation in the offense. Of this the jury are to judge from the surrounding circumstances in proof, such as companionship of parties and the conduct of defendant at, before and after the offense was committed." This latter clause is on the weight of the evidence. The first clause is a pertinent presentation of the law, but it should have gone farther and told the jury that if appellant grabbed prosecutor, or interfered to prevent an assault being made upon prosecutor, and this alone was his intent, or if the jury have a reasonable doubt as to this being his intent, then they should find him not guilty. Furthermore, we notice as appellant insists the court does not tell the jury that the taking of the money must be fraudulent. It is true, the court copied the statute on assault to rob which contains the word "fraudulent," but in the application of the law to the facts, he does not tell the jury that the taking must be fraudulent. Believing that we were in error in affirming the judgment, on the points herein stated the motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 75