Responding to the motion for rehearing in which counsel for the appellant earnestly urges the court to reverse its holding affirming this case, we have reviewed the record. He suggests that notwithstanding article 634, Code of Criminal Procedure, declares that this court shall not review the order of the trial judge refusing to change the venue, in the absence of a statement of facts upon which the trial judge acted, approved by him, and filed during the term at which the order was made, that in view of the serious nature of the charge against the appellant this court should consider the statement of facts which was not filed during the term time, and upon them reverse the ruling of the trial court in refusing to change the venue.
To do so would involve setting aside the precedent established in numerous cases decided by this court as listed in Branch's Ann. P.C., sec. 301, and would amount to a disregarding of the provision of the statute prescribing the procedure in this court and the trial court.
The duty of the courts is to observe statutory provisions. It does not lie with them to arbitrarily disobey them. Bishop v. State, 81 Tex.Crim. Rep.. The rights of the public and the citizen are best protected by an observance of the law as it is written where it does not overstep constitutional provisions. If hardship or injustice result in individual cases the remedy is not with the courts but lies in the hands of those vested with the right to exercise executive clemency.
The position of counsel for appellant, presented with great force, is that inasmuch as the indictment charged appellant, Leonard Dodd, with having carnal knowledge with the injured party by force as defined in the statute on rape, it was not competent for the State to sustain this charge by proof that Walter Stevenson had such carnal knowledge with her while appellant was present and knowing the unlawful intent of *Page 169 Stevenson by his acts aided him in committing the rape. The Supreme Court in the case of Williams v. State, 42 Tex. 392, says: "It has been repeatedly held that it is not necessary to allege in the indictment the facts relied upon to show the defendant to be a principal although the offense with which he is charged may not have been actually committed by him." In Mills v. State, 13 Texas Crim. App., 487, Judge Hurt, writing the opinion, says: "It appears from the statement of facts that Henderson Dart shot the prosecutor, Isham Berry. Mills (the appellant) was indicted separately, there being no mention of Dart in the indictment.
"Upon the trial the defendant excepted to all evidence tending to prove that Dart shot Berry, upon the ground that there was no allegation in the indictment to that effect. The court overruled the objection and the defendant excepted. We are of the opinion that the ruling of the court was correct. The State proved that Dart did the shooting, and that defendant was present, and knowing the unlawful intent of Dart, abetted and encouraged him in the commission of the offense.
"The question here raised is this: Must the indictment charge all of the parties engaged in the commission of the offense in order to the admission of evidence to prove that a party not on trial committed the act, and that the defendant (the party on trial) was present, and knowing the unlawful intent of such person, aided him by acts or encouraged him by words or gestures? We are of the opinion that this question must be answered in the negative. If the party is present and knows of the unlawful intent, aids by acts or encourages by word or gestures the party who actually commits the unlawful act, he is held a principal actor, and can be prosecuted and convicted as such."
This case states and applies the rule which has been consistently and uniformly adhered to. Mr. Branch in his Ann. P.C., p. 342, sec. 677, collates the cases.
The points raised in the motion for rehearing are a reiteration of those urged on the original presentation of the case. Without reviewing them in detail, we have again considered them and are constrained to believe that they were decided in accord with the rules of law.
We, therefore, overrule the motion.
Overruled.
PRENDERGAST, JUDGE, absent.