
    CARTER v. STATE.
    (No. 9874.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.
    Rehearing Denied May 12, 1926.)
    I.Robbery &wkey;i24(6).
    Evidence held insufficient to sustain conviction for assault to rob by defendant taking no actual part in assault or robbery.
    2. Criminal law (&wkey;>5l I (4) — That defendant and person actually committing assault to rob possessed each other’s hats is not sufficient corroboration of an accomplice (Vernon’s Ann. Code Cr. Proc. 1916, art. 801).
    Possession by defendant of hat of person actually committing assault to rob, and possession by latter of defendant’s hat, which defendant claimed was result of a trade, is not of sufficient cogency to meet requirements of Vernon’s Ann. Code Cr. Proc. 1916, art. 801, requiring corroboration of an accomplice.
    3. Criminal law &wkey;>5l I (2).
    Testimony other than that of accomplice must with some degree of cogency tend to connect accused with commission of offense.
    4. Criminal law &wkey;>l09l(ll) — Bills of exception, complaining of ruling on evidence, but merely transcribing stenographer’s notes in question and answer form, presents nothing .for review (Vernon’s Ann. Code Cr. Proc. 1916, art. 846).
    Bills of exception, complaining of court’s ruling on admission of evidence, merely transcribing stenographer’s notes in question and answer form, contrary to requirements of Vernon’s Ann. Code Cr. Proc. 1916, art. 846, present nothing for review.
    On Motion for Rehearing.
    5. Criminal law <&wkey;>5ll(4) — Defendants driving alleged accomplice near place of robbery held not to justify conviction without showing, aside from testimony of accomplice, that defendant knew of criminal intent and participated in crime.
    Driving by defendant of accomplice to within 150 feet of where latter boarded street ear and attacked motorman does not justify conviction for assault to rob without showing, aside from testimony of accomplice, that - defendant knew criminal intent of accomplice, was acting with him in criminal enterprise, and was present for purpose of doing some part therein.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Floyd Carter was convicted of assault to rob, and he appeals.
    Reversed.
    C. E. Smith and Wander & Williamson, all of Houston, for appellant.
    Horace Soule, Dist. Atty., and J. D. Du-Mars, Jr., Asst. Dist. Atty., both of Houston, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

Assault to rob is the offense ; punishment fixed at confinement in. the penitentiary for a period of four years.

According to the state’s evidence, J. W. Lindley, a street car motorman, was assaulted by Jack Henderson about 12 o’clock at night. Henderson used a pistol, of which Lindley got possession; both of them being wounded in the scuffle. At the time of the assault Lindley was on his street car, which was stopped, at the instance of Henderson, who was supposed to be a passenger.

Henderson was used as a witness by tbe state. He testified tbat be bad been tried and found guilty by a jury- Lindley’s testimony was affirmative to tbe point that neither tbe appellant nor any one else save Henderson was present at or during tbe assault. According to bis testimony, Henderson bad known tbe appellant but a day or two; tbat on the day of tbe offense be, one Miller, and tbe appellant agreed to rob tbe street car. Henderson described minutely tbe plan and tbe part of each; also bis movements during tbe day antecedent to the assault. From bis testimony we learn tbat be was to meet Miller at a place called Luna Park, and tbe appellant at Henke’s wagon yard. The plan contemplated tbat Miller would get on the car and ride in tbe guise of a passenger; tbat Henderson was to get on later, and cause the motorman to surrender tbe money, and tbat, '■if an arrest resulted, Miller would be a witness against tbe identity of Henderson as tbe assailant. This witness claimed tbat, when Miller failed to appear, a plan was devised contemplating tbat Henderson shohld be taken in the appellant’s truck, driven by tbe latter, to tbe street car; tbat Henderson should board it and make tbe motorman get off tbe car, when be would be searched and the money taken from him by the appellant. According to Henderson, he rode in tbe appellant’s car to a point on tbe street some distance from tbe street car track, where they separated, and tbe appellant was seen no more. Henderson boarded tbe car, pretending at first to be a passenger, and shot tbe motorman. A scuffle ensued in which be lost control of his pistol, and was shot by the motorman. At tbe time of tbe assault, appellant was in possession of Henderson’s cap, and tbe latter was wearing tbe appellant’s bat.

Miller testified tbat be bad been in company with Henderson and tbe appellant on tbe afternoon preceding tbe offense; tbat tbe three went to tbe same resort together; tbat Henderson made overtures to the witness and tbe appellant to join him in robbing a street car and burglarizing a store; but that neither be nor the appellant gave Henderson any encouragement or made any agreement to assent to bis proposals.

Appellant testified in bis own behalf to bis association with Henderson and Miller during tbe afternoon before tbe offense was committed. According to bis testimony, at night, after going on errands with bis truck, and hauling some furniture, be,' while in company with Henderson, took Mrs. Burke in tbe car. Appellant offered to drive Henderson to town, but be said that be would catch a street car. He then left tbe automobile, and went towards tbe street car track. Appellant took Mrs. Burke to her bouse. When sitting in bis car •on tbe street at tbe borne of Mrs. Burke, be beard the shots fired, and soon thereafter went in bis car to bis home. According to tbe appellant, while be, Miller, and Henderson were together during tbe afternoon, a trade was made, by which be traded bis-bat for Henderson’s cap, and received a dollar difference. Miller, in bis testimony, verified this transaction as having taken place in bis presence.

A police officer who lived about 300 feet from where Lindley was found testified tbat, after having retired, and upon bearing shots fired, be left bis bouse partly dressed, and went to Judge- Williams’ house, where be found Lindley in a wounded condition. He saw standing upon one of the streets a Ford truck, which was about 160 yards distant from tbe street ear which was standing on tbe track.

Appellant, in the trial court and here, contends tbat tbe evidence is not sufficient to support tbe verdict. We are constrained to regard this contention sound. That the appellant took no actual part in tbe assault is affirmatively shown by tbe testimony of Lindley, the injured party, and by Henderson. If Henderson’s testimony be true, appellant bad agreed to take a given part in tbe commission of tbe offense; namely, to search tbe motorman and take his money from him while Henderson held him in fear of bis life. Appellant failed to do what he had agreed to do. Tbe nearest point to the place of the robbery which tbe evidence shows tbe appellant to have come was 160 yards. This is but circumstantially shown by tbe testimony of Morris, who saw an automobile standing on tbe street at about the distance mentioned soon after be beard tbe shots ■ which were presumably tbe ones fired in the affray. It is not tbe contention of Henderson tbat appellant’s part in tbe offense was to keep watch or to aid in tbe escape of Henderson, but to be an actual participant. Unless appellant was an actual participant, we fail to find any evidence corroborative of tbe testimony of Henderson to tbe effect that the appellant agreed to take a given part in tbe robbery or to take any part therein. If, however, be bad agreed to take part, he bad the privilege of changing bis mind, and tbe evidence is affirmative to the effect that he did' not take part in the robbery. See Cheatham v. State, 57 Tex. Cr. R. 442, 125 S. W. 565; Branch’s Ann. Tex. P. C. p. 1099; Rasberry v. State, 84 Tex. Cr. R. 393, 208 S. W. 168.

The fact that the appellant’s bat was in the possession of Henderson and Henderson’s cap in tbe possession of the appellant is not of sufficient cogency to meet tbe requirements of the statute requiring corroboration of an accomplice, when Considered in tbe light of tbe previous association of Miller, Henderson, and tbe appellant, which comes from tbe state’s witnesses. Tbe explanation made by Miller and appellant accounting for Henderson’s possession of appellant’s bat is entirely consistent with tbe testimony vouch-fed for by the state, which brought the appellant and Henderson together at various resorts during the day preceding the offense. The precedents bearing upon the sufficiency of the corroborative evidence are too numerous to mention. The principles controlling are found in the statute. Article 801, Vernon’s Ann. Code Or. Proc. 1916, vol. 2, p. 732. The application of the principles will be found in cases listed in Noble v. State, 100 Tex. Cr. R. 404, 273 S. W. 251, to which we refer. Testimony other than that of the accomplice must with some degree of cogency tend to connect the accused with the commission of the offense. In the present case, the conceded conduct of the appellant is contradictory of the testimony of Henderson.

There are numerous bills of exception attempting to present for review complaints of the rulings of the court upon the admission of evidence. They are in the main but transcriptions of the stenographer’s notes in question and answer form, contrary to the requirements of the statute. See article 846, Vernon’s Ann. Code Or. Proc. 1916, vol. 2, and numerous interpretations thereof. For that reason and others they present no question which we are called upon to review.

Because of the insufficiency of the evidence, the motion for new trial should have been granted. Its refusal renders a reversal of the judgment proper. It is accordingly ordered.

On Motion for Rehearing.

LATTIMORE, J.

The state urges that the evidence, aside from that of the accomplice, does tend to corroborate said witness, and that the case should have been affirmed. In the light of the motion, we have again carefully analyzed the testimony. The state introduced four witnesses. Lindley swore only 'to the fact of the attack upon him and the attempt to rob him by Henderson. Henderson swore to the same facts, but, in addition, asserted that appellant conspired with him to commit the robbery, carrying him in a truck to the scene, was to have aided in its commission, and was left by him in a truck '40 or 50 yards from where he caught the street car, just before the attempted robbery. Morris heard the shots fired In said attempted crime, came out of his house, and saw a truck 150 or 160 feet from said street car, which drove away north, but did not see any occupant thereof. He said it was an old truck with ragged curtains. Nelson arrested appellant a day or two after the attempted robbery while the latter was driving an old truck with ragged curtains. Henderson swore that he and appellant had exchanged headgear before the attempted robbery with a view at concealing their identities. Nelson found at appellant’s home, after the latter’s arrest, a cap. On the trial both appellant and Henderson identified said cap and a hat worn by appellant at the time of the commission of the crime, which Henderson claimed they had exchanged for the purpose mentioned; appellant claiming that they had swapped the hat and the cap that afternoon, he paying Henderson $1 boot. Appellant admitted being in the neighborhood of the robbery that night, claiming that he went out to see a Mrs. Burke,' and that Henderson asked appellant to take him in the latter’s truck to a point where he could catch a street car. Appellant said he and Mrs. Burke were in the truck together, and let Henderson out at the point desired, and that as they drove away Mrs. Burke said she heard some shots. This is a condensed statement presenting all the corroborating testimony.

If it be conceded that appellant drove Henderson in his truck to the point where the latter got out, and then went 150 or 160 feet to where he boarded a street car, after which Henderson made an attack upon the street car motorman with a pistol with the purpose of robbery, this would not of itself, aided by Henderson’s testimony, make out a case sufficient to justify the conviction of appellant. The proof aside from Henderson would have to show that appellant knew the criminal intent of Henderson, and was acting with him in the criminal enterprise, and was present for the purpose of doing some part in same. As we understand this record, there is no testimony at all supporting such proposition save that of Henderson.

Being unable to agree with the contention made in the state’s motion, same will be overruled. 
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