
    COLLINS v. STATE.
    (No. 11305.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    1. Criminal law 10 — Instruction on law .of principals and instructions on alibi held contradictory.
    Instruction that if parties were principals all of them were guilty, provided offense was committed during existence and execution of common design and intent regardless whether all were actually bodily present when offense was committed, and instructions covering law of alibi and stating that jury should acquit if they had reasonable doubt as to whether defendant was in bank participating in commission of robbery held contradictory.
    2. Criminal law <©=>814(19) — Instruction submitting guilt of defendant, if he was not actually present when offense was committed, held error, where alibi was defense and there was no evidence that he was absent but aiding.
    Instruction that if parties were principals all were guilty, provided offense was committed during existence and execution of common design and intent,, regardless whether all were actually bodily present when offense was committed, held error, where alibi was defense and there was no evidence that defendant was absent but aiding in commission of offense.
    Commissioners’ Decision.
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Earl Collins was convicted of robbery, and he appeals.
    ■ Reversed and remanded.
    R. T. Chapin and Dave Watson, both of San Antonio, for appellant.
    O. M. Chambers, Dist. Atty., Lamar Seelig-son, Asst. Dist. Atty., Walter Tynan, Asst. Dist. Atty., all of San Antonio, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

■. The offense is robbery; • the punishment, confinement in the Penitentiary for 5 years.

Smith v. State, 10.6 Tex. Cr. R. 434, 292 S. W. 877, and Yeager v. State, 106 Tex. Cr. R. 462, 294 S. W. 200, are companion cases. Appellant,.Elmer Wilkins, Joe Hobreeht, Jack Smith, and ICenneth Smith were jointly indicted for the offense of robbery. It was the state’s position that appellant acted with said named parties in robbing the San Antonio National Bank. Appellant relied upon an alibi. The state contended that appellant was present at the commission of the offense. There .was no evidence on the part of the state that he was absent,, but aiding and assisting the • other parties involved. The court charged on the law of principals in part as follows:

“When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is, Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and execution of the common design and iptent of all, .whether in point of fact' all were actually bodily present on tlie ground when the offense was actually committed or not."

An instruction covering the 'law' of alibi ' was submitted. Following the. charge. on principals and immediately preceding the charge on alibi, the court gave an instruction to the effect that the jury would acquit appellant if they had a reasonable doubt that he was actually in the San Antonio National Bank participating in the commission of the offense, if any.

Appellant timely objected and excepted to the charge on the law of principals on the ground that said charge was contradictory of the charge on alibi-. The written objection specifically pointed out the points of conflict. The holding of this court in the case of Yeager v. State sustains appellant’s contention. Two points of conflict with the instruction that a principal might be guilty under the conditions stated, whether or not he was actually bodily present on the ground when the offense was committed, resulted from the giving of the charge on alibi, and that relative to the necessity of appellant’s presence in the bank at the time of the commission of the offense. Alibi being the defense, and there being no evidence that appellant was absent but aiding in the commission of the offense, the charge complained of was erroneous. In Yeager v. State, supra, in referring to the question under consideration here, this court said:

“The court should not have embraced in his charge on principals that portion of same relating to the absence of appellant, as there was no evidence in the record raising such an issue. The state contended that appellant was present at the commission of the offense, and there was no evidence to the effect that he was absent but aiding and assisting the other co-defendants in the commission of said offense. We think the law announced in Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223, is applicable to the instant case.”

We do not deem it necessary to discuss the other matters complained of as they are not likely to arise on, another trial of the case.

For the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM. 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. 
      ©s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     