
    SPEARS v. STATE.
    (No. 8117.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    1. Larceny <&wkey;70 (3)— Evidence held to justify a charge on the law of principals.
    In view of Pen. Code 1911, arts. 75, 78, declaring principals certain persons present when an offense is committed, evidence on prosecution for theft of an automobile tire, talsen by another from a nearby machine, and thrown into defendant’s car, with which he drove away, held to raise an issue of fact as to knowledge and intent, justifying ’a charge on the law of principals.
    2. Criminal law <&wkey;814(!9) — indictment need not describe defendant as principal to warrant charge on law of principals.
    To warrant a charge on the law of principals, the indictment need not describe defendant as principal.
    <§=>For other cases see same topic and KE3Í-NUMBER in all Key-Numbered Digests and Indexes -
    Appeal from Howard. County Court; J. T. Brooks, Judge.
    Bob Spears was convicted of theft, and appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for misdemeanor theft; punishment fixed at a fine of $150, and confinement in the county jail for a period of 30 days.

A summary of the evidence follows: About 1 o’clock on the night of May 3d, Clarence Thompson took an automobile tire from the car of Jess Andrews which was standing near the depot. ' After taking the tire, he jumped in the car driven by the appellant, which was near by, threw the tire into it, and the appellant immediately started the car. The officer who saw the transaction threw his flashlight .upon 'the faces of the parties in the car and told them to stop, but could not say that they heard him. About an hour later the appellant Clarence Thompson and Frank Anderson, who were the parties in the car, were arrested. On the following day Clarence Thompson returned the automobile tire to Jess Andrews. The appellant owned three automobiles which were used as jitneys. One was driven by him, one by Thompson, and one by Anderson.

Appellant’s testimony is to the effect that Thompson threw the tire into the appellant’s car, jumped into it, and told the appellant to drive to the hospital; that the officer threw his flashlight upon them as he started, but that being a common occurrence it did not require notice, and he did not hear the command to stop. He did not know that the automobile tire was stolen. On reaching the hospital and learning that the tire was stolen, appellant told Anderson to take it back at once. Anderson promised to do so on the text morning. This he did about noon. Appellant made no disclosure of the transaction until he was arrested, which was about an hour later. We are unable to say that the nature of appellant’s connection with the transaction did not raise an issue of fact. The stolen tire was put in his ear, which was situated a very short distance from where the tire was jerked from the car of the owner. With Thompson, the taker, and the stolen tire, appellant drove, his car away. The stolen tire was thrown into some weeds near the hospital. No disclosure of the appellant’s connection with the theft was made until after his arrest and that of Thompson. With what knowledge and with what intent the appellant acted were questions of fact. The evidence justified a charge on the law of principal offenders. The' appellant was present, within the meaning of the law, at the time of the taking. He rendered aid to Thompson in removing the stolen property and in hiding it. A principal is one who, being present, and knowing the unlawful act, aids by his acts or encourages by his words the actual taker of the property. Article 75, P. C. When, theft is committed, one who is present and endeavors to secure the safety and concealment of the offender is a principal. Article 76, P. O. A person who advises or agrees to the commission of an offense, and w.ho is present when the same is committed, is a principal thereto. Article 78, P. C. We are unable to say, as a matter of law, that the evidence is not sufficient to show that the appellant’s act brought him within one of these provisions of the law. To warrant the court in charging on the law of principals it was not necessary that the indictment describe them as such. Branch’s Ann. Tex. P. C. § 679; Cruit v. State, 41 Tex. 476; Williams v. State, 42 Tex. 392; Bell v. State. 1 Tex. App. 598; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; Dodd v. State, 83 Tex. Cr. R. 163, 201 S. W. 1014.

Finding no error in the record, the judgment is affirmed.  