Seals v. State ( 1934 )

The offense is robbery; the punishmen, confinement in the penitentiary for five years.

Horace Wells, the injured party, testified, in substance, as follows: Appellant carried him to the scene of the robbery in his (appellant's) car. He got out of the car and appellant drove away. While he was walking up the street Collier Brooks and Willie McWynn came up behind him. Lemmie Harris was with them. McWynn drew a gun on the witness and Collier Brooks took forty dollars in money from him.

Collier Brooks was placed on the stand by the State. He testified that he, Lemmie Harris and appellant entered into an agreement to rob Horace Wells; that appellant furnished the pistol with which the offense was committed; that appellant drove away when the robbery was committed, but was waiting for them less than four hundred yards away in his automobile; that it was agreed that appellant was to wait for them and carry them away in his automobile to Dallas; that appellant brought Horace Wells to the place of the robbery in his (appellant's) car; that appellant received nineteen dollars of the money obtained from Wells. The State introduced appellant's confession in which appellant stated that he furnished the gun with which the robbery was committed; that it was agreed between him and his co-defendants that they were to meet on North Palace Street after the robbery; that after the robbery had been committed his co-defendants got in the car with him and he drove away with them.

Testifying in his own behalf, appellant denied that he participated in the commission of the offense. He testified, further, ther, that he made the confession because of the fact that he had been placed in a dark cell and wanted to get out.

We are unable to agree with appellant that the testimony on the part of the State shows that the offense is accomplice to robbery. Appellant was less than four hundred yards away in his automobile for the purpose of carrying the parties away to Dallas. Under the chapter on principals, articles 65 to 69, Penal Code, the acts of appellant, as described by the evidence, would make him a principal. We quote the language of Judge Lattimore in Rowan v. State, 260 S.W. 591, as follows: "There is another view of this matter. One is a principal who, having advised or agreed to the commission of an offense, is present when it is committed, whether he then aids or not. Article 78, P. C. It is not necessary, in order to make one 'present' within the meaning of this statute, that he be in immediate contact with the other actors. Bass v. State,59 Tex. Crim. 186, 127 S.W. 1020 (appellant about 100 yards away); Coffman v. State, 51 Tex.Crim. Rep.,103 S.W. 1128 (in the immediate vicinity); Grimsinger v. State,44 Tex. Crim. 1, 69 S.W. 583 (in woodshed, killing occurring in residence); Mason v. State, 32 Tex. Crim. 95,22 S.W. 144, 408 (in neighborhood). American English Ency. of Law defines 'present' as 'being in view or immediately at hand.' McClains Crim. Law, sec. 200, lays down the proposition that if one takes some part in a criminal enterprise, it is not necessary that he take an active part if in the carrying out of the final criminal act he is participating in the common plan by doing something or being ready to do something in furtherance thereof, at a place other than that where the act is consummated. In the discussion in the Bass Case, above, will be found support on the two propositions that there was no need for a charge on circumstantial evidence because of the juxtaposition of the accused to the crime and the fact that he was near enough to it to make him a principal. By positive evidence in the case before us it was shown that appellant was present, in the sense we have just been discussing."

In Barnett v. State, 291, S.W., 540, this court said: "As applied to one actually absent in person from the scene of the commission of the offense, this means that the State must prove in some legal manner that the accused was a party to a plot or agreement to commit the crime, and that, after he had agreed with those actually committing the offense or others that same should be committed, or that some enterprise should be embarked upon whose execution fairly included the commission of such crime, the proof must further show the accused was doing something at the very time of the commission of the offense which was in furtherance of the common purpose. Coomer v. State, 97 Tex.Crim. Rep., 262 S.W. 495."

According to the State's testimony, appellant had entered into an agreement with his co-defendants to commit the offense. At the time the robbery occurred appellant was less than four hundred yards away in his automobile for the purpose of carrying the parties to safety. Under the circumstances, although he was not physically present, appellant was a principal because of the fact that after having entered into an agreement to rob, he was at the very time of the commission of the offense, doing some act assigned to him in furtherance of the common design. Coomer v. State, 262, S.W., 495.

We are unable to agree with appellant's contention that the court was in error in permitting the State to introduce the confession. The officer taking the confession gave testimony which, if believed, warranted the conclusion that the confession was freely and voluntarily made. The court adequately submitted the issue to the jury.

We deem it unnecessary to discuss the remainder of appellant's bills of exception. A careful examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.