
    ELLIOTT v. STATE.
    (No. 11219.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    Burglary @=46(I) — Accused who was present near scene of burglary held entitled to affirmative charge that presence was insufficient to sustain conviction.
    In prosecution for burglary, where accused at time of apprehension was present near place at which another was handling quantity of paint, some of which was identified as having come from burglarized premises, but accused did not handle paint, and there was no testimony that he broke into house or was actually present when same was burglarized, held, that accused was entitled to affirmative charge that his mere presence at time and place of commission of offense was insufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, -Tom Green County; J. E. Sutton, Judge.
    Mack Elliott was convicted of burglary, and be appeals.
    Reversed.
    Stinson, Hair & Brooks, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, two years in the penitentiary.

A building was burglarized and a quantity of paint taken. Appellant! and • one Tom Seale were apprehended in the vicinity of the building and in close proximity to a quantity of paint, some of which was identified as having come from the burglarized premises. At the time of such apprehension Tom Seale was handling this paint. His car stood nearby. Appellant did not handle the paint, and there was no direct testimony that he broke into the house or was actually present when same was burglarized. The state depended mainly upon the circumstance immediately above related.

Appellant’s testimony, which was corroborated in part by two other witnesses, was to the effect that he had gone with Tom Seale, to the point where he and Seale were apprehended, for the purpose of taking a drink with Seale; that he knew nothing of the burglary nor of the presence of the paint in his vicinity; that he never claimed same nor was same ever in his possession or handled by him. Under these circumstances, the appellant claimed that he was entitled to an affirmative charge that his mere presence at the time and place of the commission of the offense would be insufficient to sustain a conviction.

The court charged on principals only. The converse of the law of principals was not charged, nor did the court anywhere instruct the jury that the mere presence of the appellant at the time and place of the burglary would not justify his conviction unless the evidence shows that he did some act aiding, abetting, assisting, or encouraging the person who did commit it.

Under a state of facts very similar to the instant case, such a charge was held to be necessary. Jackson v. State, 20 Tex. App. 190. Firom this authority we quote:

“Although a man may be present whilst a felony is committed, if he take no part in it and do not act in concert with those who committed it, he will not be a principal merely because he did not endeavor to prevent the felony or apprehend the felon. Whether he was aware of the intention of his companion and participated in it is the fact to be proved in order to implicate him in the criminality of the act.”

And further:

“From the proposition that mere presence at the commission of a crime does not render a person guilty it results that if two or more are lawfully together, and one does a criminal thing without the concurrence of the' others, they are not thereby involved in guilt.”

This authority was followed recently by Justice Lattimore in the case of Wise v. State, 104 Tex. Cr. R. 327, 283 S. W. 792. See, also, Nowlin v. State, 60 Tex. Cr. R. 356, 132 S. W. 800; Davis v. State, 66 Tex. Cr. R. 659, 148 S. W. 303.

This was the only defense relied on by appellant, and the court’s failure to include an affirmative presentation of it in his instructions constitutes error which demands a reversal of this case, and it is so ordered.

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. 
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