
    ARLINGTON v. STATE.
    (No. 8236.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1924.
    Rehearing Denied June 25, 1924.)
    1. Criminal law <8=3814(17) — Charge on circumstantial evidence held unnecessary.
    Evidence in prosecution for robbery held not to necessitate charge on circumstantial evidence.
    2. Criminal law <8=552(1) — Defendant’s rights as related to circumstantial evidence not defeated by his mere presence at scene of offense.
    Where actual offense is committed by another than defendant, defendant’s mere presence does not deprive him of right to have his connection with offense determined by the rule of circumstaníáal evidence.
    3. Criminal law <8=829(1) — Denial of requested charge covered by another given, not error.
    Denial of requested charge covered by another given held not error.
    4. Robbery <8=23'( I) — Evidence as to automobile used by defendant in committing offense and at time of arrest held admissible.
    Evidence that automobile used by defendant in committing offense was of same make and model as one he was using at time of ar-restan another city held admissible.
    5. Robbery <8=23(1) — Evidence indicating defendant’s change of license tag on automobile ■ after offense held admissible.
    Where defendant at time of offense used automobile bearing foreign license, and at time of arrest in different city used same-type of car bearing newly issued domestic license, evidence that envelope in which such domestic license was inclosed was found on premises occupied by defendant and companion in committing offense held admissible.
    6. Robbery <8=23(3) — Evidence tending to show defendant’s exhibition of roil of bills in store after offense held admissible.
    Evidence that paper, usable for wrapping and bearing advertisement of store at which defendant and companion bought articles and exhibited roll of bills immediately after offense, was found in room, occupied by them immediately before offense, from which they soon departed, held admissible. •
    7. Robbery <8=23(1) — Evidence, of finding of pistols in defendant’s room held admissible.
    Evidence of finding of pistols in room occupied by defendant and companion when arrested, which coincided in appearance with description of those used in committing the offense, held admissible.
    8. Robbery ' <8=23(3) — Evidence of finding marked bill in defendant’s possession, admissible.
    Evidence that bill found in defendant’s possession after arrest was peculiarly marked, as was one taken from complaining witness, held admissible.
    9. Criminal law <8=424(1) — Acts and declarations of coconspirator after offense, admissible when incriminated by possession of property.
    Though, as general rule, acts and declarations of coconspirator subsequent to offense should not be received against accused on trial, an exception exists when it is shown that, co-conspirator is found in possession of fruits of crime or weapons or instruments with which it was committed.
    10. Criminal law <8=339 — Evidence of association of defendant and companion held admissible affecting identity.
    Evidence showing association of defendant and companion, both before and after offense, held admissible on issue of defendant’s identity.
    11. Criminal law <8=1091(4) — Bill, complaining of testimony as to papers found in defend- , ant’s possession, held n'ot to present error.
    Bill complaining of testimony, and that appellant had on his person certain papers, does not present error, in absence of description of those papers; priof of articles found in defendant’s possession being admissible, if relevant.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    George Arlington was convicted of robbery, and he appeals.
    Affirmed.
    Howard H. Dailey and Harper & Lewis, all of Dallas, for appellant.
    Shelby S. Cox, Cr. Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of 35 years.

Everett Knott, the subject of the robbery, gave a description of the occurrence, which is in substance as follows; He was an employee of a mercantile company having a number of' retail stores in the city of Dallas. It was his duty to visit these stores and collect the money that had been received at each of them. He, in company with Edward Hunt, Jr.', another employee of the company, while engaged in the pursuit mentioned and riding in á Ford automobile upon one of the streets of Dallas and haying in his possession a hand satchel containing about $2,400 in money, was robbed. A Cadillac automobile was driven by the appellant to the side of the Ford car, and Whalen, a companion of the appellant, presented two pistols. Knott and his companion were forced to stop by the driving of the Cadillac, angling towards the sidewalk and towards the Ford car. When the cars stopped, Whalen got out of the Cadillac car, still holding the pistols leveled at Knott and Hunt, demanded the satchel containing the money, and took possession of it. After obtaining the . money, Whalen got back into the Cadillac car and it was driven away. The appellant and Whalen were afterwards arrested in Oklahoma City. Various circumstances were introduced fortifying the state’s case in identifying them as the offenders.

In addition to the main charge, there were given some 14 special charges prepared by the appellant.

We are unable to agree with the appellant’s position that there should have been a charge on the law of circumstantial evidence, for the reason that there was direct evidence that both the appellant and Whalen took part in the commission of the offense. It is true that where the actual assault was committed by another, the mere presence of the accused would not deprive him of the right to have his connection with the offense determined by the rule of circumstantial evidence. Anderson v. State, 85 Tex. Cr. R. 411, 213 S. W. 639, and cases there cited; Joyce v. State, 90 Tex. Cr. R. 265, 234 S. W. 895; Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82; Ellsworth v. State, 92 Tex. Cr. R. 335, 244 S. W. 147. The evidence that the appellant aided and encouraged his companion Whalen in the assault is not an inference drawn from other facts. It comes directly from the testimony of the injured person.

The law of principal offenders wa-s embraced in the main charge of the court, which included an instruction to the effect that to hold the appellant responsible for the act of Whalen, appellant must have aided Whalen with knowledge of his unlawful intent., The same principle was embraced in appellant’s special charge No. 15, which was given to,the jury. The court properly declined’ to repeat this instruction by giving the additional requested charges.

Appellant did not testify, and there was no affirmative testimony, direct or circumstantial, leading to the conclusion that the appellant was not aware of the unlawful intent of Whalen. I-Ie and Whalen were together in the daytime. Appellant, using the automobile which he was driving, caused the injured p'arty to'’ stop- his car while Whalen, with drawn pistols on Knott, got out of the ear controlled by the appellant and took the property away from Knott, after which Wha-len and the appellant escaped in the automobile driven by the appellant. . All that the law demanded touching the appellant’s knowledge of the unlawful intent of Whalen was given in the main charge and special charges.

The court sanctioned the introduction by the state of various circumstances tending to supplement the direct evidence identifying the appellant. Among other items which were in evidence was the automobile used by the appellant in committing the offense, which was of the same make and model as that which he was using at the time of his arrest in Oklahoma City. At the time of the offense, the license number on the car was of a foreign state. The one on the car at the time of his arrest was issued in Dallas, Tex., a short time prior to the date of the offense, and was delivered to one bearing the appellant’s name. The envelope in which this Texas license was inclosed was found on the premises occupied by the appellant and his companion in committing the offense.

Appellant and his companion, shortly after the robbery, purchased merchandise from a certain store in the city of Dallas, and at the time one of them exhibited a roll of bills. A paper usable for wrapping and bearing the advertisement of the store at which the appellant and his companion brought the articles mentioned was found in the room in Dallas which hhd been occupied by them immediately before the robbery, and from which they had departed very soon after the robbery was committed. The appellant and his companion, at the time of their arrest, occupied rooms in the same apartment in Oklahoma City, and in th'e room of each of them was found a pistol which coincided in appearance with the general description of the pistols used in the robbery as given by the injured party. In the room of Whalen was found- a package of United States currency among which was one bill' containing peculiarities by which it was identified by one of the witnesses as one of the bills taken from Knott. A pair of goggles were worn by Whalen at the time the offense was committed, and a like pair was found in his room at the time of the arrest.

The court instructed the jury that proof touching the articles found in possession of Whalen after the robbery could npt be considered against the appellant, unless the jury believed beyond a reasonable doubt that such articles .were obtained or used in the commission of the offense. In receiving the testimony mentioned, the learned trial judge did not, in the opinion of this court, offend against any rule of evidence. It is true that, as a general rule, the acts and declarations of a coconspirator occurring subsequent to the commission of the offense should not be received against the accused on trial, hut an exception to that rule obtains when it is shown that such coconspirator is found in- possession of the fruits of the crime or the weapons of instruments with which it was committed. Branch’s Ann. Tex. P. C. § 695. The exception prevails in the present case. The possession of the weapons or instruments used in committing the robbery or any of the property obtained by Whalen would tend to incriminate him, and it appearing from the direct evidence that the appellant acted with Whalen, the circumstances mentioned are corroborative of the dii'eet evidence pointing to the guilt of the appellant. Pierson v. State, 18 Tex. App. 561, and other cases collated in Branch’s Ann. Tex. P. C., § 695, subd. 3; Williams v. State, 88 Tex. Cr. R. 96, 225 S. W. 177; Wharton’s Crim. Evidence, vol. 2, § 518e.

The evidence introduced showing the association of the appellant and Whalen both before and after the offense was properly received on the issue of the appellant’s identity. Wharton’s Crim. Evidence, vol. 1, § 27, and volume 2, § 518e.

The bill complaining of the testimony that the appellant had upon his person certain papers shows no error. The bill does not describe the papers which were found in possession of the appellant. The proof of articles found in the appellants’ possession, however, if relevant, would have been admissible. Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322.

The record revealing no error, the judgment is affirmed. 
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