Appellant in his motion offers the proposition that the first count in the indictment herein is fatally defective; that the first four counts in such indictment were submitted by the trial court to the jury; that the jury returned a verdict of "guilty as charged in the indictment;" therefore the jury may have found the appellant guilty under the invalid first count in *Page 302 such indictment, and that the doctrine laid down in McMurtry v. State, 43 S.W. 1010, should apply. In the McMurtry case it was held:
"The general rule that, when there are a number of counts in an indictment, some good and some bad, after verdict the conviction will be applied to any good count which is supported by the evidence, does not apply where a preliminary motion made to quash the indictment is overruled, and certain counts are defective."
There might be some merit in such contention if it was patent that count one was thus fatally defective. We note, however, that such count follows the form laid down by Willson's Criminal Forms, Fifth Edition, page 456, Form 765, with the exception of the words "prior to the commission of the said offense." It is to be borne in mind that the said indictment begins by charging that three parties, other than appellant, did commit the crime of robbery by the use of firearms upon one Aycock on or about the 26th day of January, 1941; then follows:
"AND THE GRAND JURORS AFORESAID, UPON THEIR SAID OATHS, IN SAID COURT, AT SAID TERM do further present that Vicente Villarreal on or about the 25th day of January, A.D. one thousand nine hundred and forty-one and anterior to the presentment of this indictment, in the County of Hidalgo and State of Texas, did then and there unlawfully, willfully and fraudulently advise the said Jose Villarreal Jaimes, alias Pepe Jaimes, Rosendo Arguijo and Horace Hamlin to commit the said offense; the said Vicente Villarreal not being present at the commission of an offense, but who before the act is done, ad-alias Pepe Jaimes, Rosendo Argijo and Horace Hamlin."
It is well understood that Art. 70, P. C., defines an accomplice, among other things, as "one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense."
It will be noted that the act of those charged with the robbery is set forth by date as January 26, 1941, and the advice of appellant as having been given as January 25, 1941, or one day prior to the date of the alleged robbery. We also find ourselves unable to see how one could "advise" the commission of an offense after such offense has been committed. He might "commend" such offense, but would seem to be too late to advise in the present tense the commission of that which has *Page 303 already been committed. We do not think the first count in the indictment was defective. We also think the second, third and fourth counts are free from defects, and that the verdict of the jury can be applied to either. We also remain of the opinion that the trial court was correct in submitting to the jury the voluntary character of the written statement of the appellant.
There has been deleted from the original opinion a statement therein that did not primarily deal with any legal question presented herein, and which was not borne out by the record, and which will not appear in the reports herein.
We see no error presented, and the motion will therefore be overruled.