
    MOODY v. STATE.
    (No. 10500.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1926.
    Rehearing Denied Jan. 26, 1927.)
    1. Robbery <§=>24( I) — Facts held to warrant finding that one driving automobile was principal offender in crime of robbery (Vernon’s Ann. Pen. Code 1925, arts. 66, 67, 69).
    In prosecution for robbery, evidence that defendant was present in automobile, keeping watch and aiding in securing safety of confederates, in connection with actions in concert with them before, at time of, and subsequent to, unlawful act, A eld to .warrant finding that he was principal offender under Vernon’s Ann. Pen. Code 1925, arts. 66, 67, 69.
    2. Criminal law <§=>814(17) — Where direct evi-> dence showed defendant’s presence and par* ticipation as principal in commission of-rob'*' bery, charge on circumstantial evidence was not required on issue of intent.
    In prosecution for robbery, where direct evidence showed that defendant was present in automobile, keeping watch, and aiding in securing safety of his confederates, charge ©la circumstantial evidence was not required on issue of intent.
    3. Criminal law <§=>1091 (I I) — Bill of exceptions in question and answer form was objectionable.
    Where bill of exceptions was transcription of stenographer’s notes in question and answer form, its form was objectionable.
    Appeal from Criminal District Court, D*l> las County; Felix D. Robertson, Judge.
    D. C. Moody was convicted of robbery, and he appeals.
    Affirmed.
    Baskett & De Lee, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of 15 years.

No statement of facts accompanies the record. We find several bills of exceptions which bear upon the rulings of the court in receiving certain evidence. The relation of the matters to which the bills advert cannot be ascertained from the bills, nor appraised in the absence of a statement of the facts.

There is complaint of certain special charges, the applicability of which we are unable to determine, in the absence of the facts which were before the court at the time the charges were given to the jury. The same may be said of the complaint made of the argument of the prosecuting attorney.

The judgment is affirmed.

On Motion for Rehearing.

Since the affirmance of the case, the statement of facts has been filed; the clerk of the trial court having previously neglected to send it to this court.

The evidence shows without controversy that Revier and Wages, using firearms, committed the robbery of persons in charge of a Piggly Wiggly store. In the appellant’s confession and in his testimony he admitted that Revier and Wages were his companions; that they went together in an automobile to a point near the Piggly Wiggly store which was robbed; that he remained in the automobile while the robbery was committed, which took two or three minutes; that, after the robbery, he drove the actors (Revier and Wages) away to their homes, and returned the automobile which they used to the'service station from which it was hired. Without, going into detail, the circumstances are such as warrant the conclusion that the appellant was cognizant of the robbery at the time it was committed; that he was an actor therein by way of keeping watch and assisting in the escape of the robbers. Pie claims in his confession that he did not know until afterwards that the robbery had been committed.

The conceded facts warrant a finding by the jury that appellant was a principal offender, under articles 66, 67, and 69, vol. 1, P. O. 1925. There was evidence that he was present, keeping watch, aided in securing the safety of his confederates, and, from his actions in concert with them before, at the time of and subsequent to the- unlawful act, an agreement to do so may be inferred. See Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Coomer v. State, 97 Tex. Cr. R. 588; 262 S. W. 495; Monday v. State, 90 Tex. Cr. R. 8, 232 S. W. 831; Hays v. State, 90 Tex. Cr. R. 193, 236 S. W. 463; also Underhill on Crim. Ev. (3d Ed.) § 491; Wharton on Homicide (3d Ed.) § 441; 2 Wharton’s Crim. Ev. p. 1732. The direct evidence showing appellant’s presence and participation to the extent stated above, a charge on circumstantial evidence was not required, on the issue of intent. See Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Branch’s Ann. Tex. P. C. §1874.

In bill of exceptions No. 1 there is complaint of the inquiry touching the arrest of the appellant. The form of the bill is objectionable, in that it is a transcription of the stenographer’s notes in question and answer form. However, even if considered, the bill contains no recitals which show that the questions propounded were not proper or that they were harmful.

Bill of exceptions No. 2 is similar in form to bill No. 1, and, moreover, is lacking in a statement of the surrounding facts such as would enable the court to determine that the ruling complained of was erroneous or harmful.

The complaint of the argument of state’s counsel in bill No. 6 is sufficiently met by the facts stated in the qualification of the bill by the trial judge going to show that, so far as the argument mentioned is subject to objection, it was an appropriate reply to the remarks of the appellant’s counsel in which he went out of the record.

Finding no error, the motion is overruled. 
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