
    NELSON v. STATE.
    (No. 10197.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.)
    1. Larceny <&wkey;>68(l).
    Where evidence was sufficient to support conviction for theft, refusal of peremptory instructions to acquit held proper.
    2. Criminal law <&wkey;823(!6)&emdash;Refusal of instruction as to necessity for finding that defendant aided or encouraged talcing held not error, in view of instruction given.
    Refusal of instruction that, if defendant was present at time of alleged theft, it would be necessary to find that he aided or encouraged the taking held not error, as charge given presented matter more favorably to defendant than that requested.
    Commissioners’ Opinion.
    Appeal from District Court, Shackelford County; W. R. Ely, Judge.
    Albert Nelson was convicted of theft, and he appeals.
    Affirmed.
    C. P. Chastain, of Hamlin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is theft, and the punishment is two years in the penitentiary.

There are no bills of exceptions contained in the record. The evidence is entirely sufficient to justify the -jury’s verdict in finding the appellant guilty as a principal in the commission of the offense.

There were three speeial chargee of-fereci which were by the court refused. Two of these were in effect peremptory instructions to acquit, and under the view stated of the evidence the court correctly refused same.

By his special charge No. 3, appellant requested the court to charge as follows:

“You are charged as a part of the law applicable to this case that, if you should find that the defendant was present at the time the alleged offense was committed,! if any, it would be necessary, before you could convict the defendant, that you further find from the evidence that the defendant, at the time of the taking, aided by words or encouraged by gestures the actual taking o£ the property.”

The court in his main charge submitted this question in the following language:

“The bare presence of the -defendant would not constitute him a principal. You must go further and find from the evidence beyond a reasonable doubt that he was aiding or assisting in the taking of the property in question, if it was taken, and knew the guilty intent of his co-principal.”

The matter, as presented by the court, was given in a much more favorable light than was the requested charge which the court refused to give. In the court’s main charge the defensive theory was presented in connection with the reasonable doubt, while, in the charge requested, the question of reasonable doubt was ignored. We think a citation of authorities is unnecessary to sustain the conclusion that the court correctly refused the special charge.

Einding no error in the record, the judgment is in all things affirmed.

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.  