
    KNIGHT v. STATE.
    (No. 9313.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.
    Rehearing Denied Nov. 18, 1925.)
    1. Robbery <&wkey;23(2) — Testimony of prosecuting witness that he was scared at time of robbery properly admitted.
    In prosecution for robbery, testimony of the prosecuting witness that he, was scared at the time of the robbery held, properly admitted as a circumstance surrounding the offense.
    2. Criminal law c&wkey;665(4) — Admission of testimony of officer excused from the rule not error.
    
      Admission of testimony of an officer, excused by the court from the rule because he was needed at times in court when the sheriff was absent, 'held not error.
    3. Criminal law <&wkey;>l 120(8) — Exception to testimony as to arrest of alleged accomplice on night of robbery held not to show error.
    In prosecution for robbery, exception to testimony as to arrest of an alleged accomplice on the night of the robbery held not to show error, in absence of any showing in bill as to the connection in which the question was asked or the facts relating thereto.
    4. Criminal law <&wkey;>537 — Testimony as to finding money on alleged accomplice admissible.
    In prosecution for robbery, testimony of finding certain amount of money on alleged accomplice held clearly admissible as corroborating confession of accused as to what share of victim’s money that accomplice had got, and also evidence that accomplice had changed $1 shortly after the alleged robbery.
    5. Criminal law <@zz>829(4) — Refusal of special charge embodying accused’s defense held not error, where defense was clearly presented in main charge.
    In prosecution for robbery, defended on ground that accused and companions had acted merely in fun, where court clearly presented this defense in main charge, refusal of special charge thereon held not error.
    On Motion for Rehearing.
    6. Criminal law <&wkey;665(4) — Excusing witnesses from rule held discretionary.
    Court has large discretion in excusing witnesses from the operation of rule invoked by accused.
    7. Criminal law <&wkey;l 141 (2)— One attacking court’s discretion has burden of proving abuse.
    One attacking a matter deemed erroneous only when it is shown that discretion of trial court has been abused has burden of showing facts amounting to such aBuse.
    Commissioners’ Decision.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Lester Knight was convicted of robbery, and he appeals.
    Affirmed.
    [ J. R. Creighton and Ritchie & Ranspot, all of Mineral Wells, for appellant.
    I Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Palo Pinto county for the offense of robbery, and his punishment assessed at confinement in the penitentiary for a term of five years.

This is a companion case to that of Virgil Montgomery (No. 9310) 276 S. W. 250, decided by this court in an opinion delivered June 10, 1925, and which is now pending on motion for rehearing. That case contains a sufficient statement of the facts,

Appellant’s first bill of exception complains at the court’s action in permitting some of the state’s witnesses to remain in the courtroom after the rule had’ been invoked. The court qualifies this bill by stating that the witnesses excused from the rule were officers, and the court at times needed them in court when the sheriff was absent. It has always been held that this is a matter addressing itself to the sound discretion of the court, and we find in the record before us' no abuse of that discretion.

Bill of exceptions No. 2 complains at the court’s action in permitting the state to prove by Jim Riggs, the party alleged to have been robbed, that he was scared at the time of the robbery. It was proper to show all the conditions and circumstances occurring at the time the offense is alleged to have been committed which were germane thereto, and this testimony was properly admitted under this rule.

Bill of exceptions No. 3 preserves appellant’s objection to the witness Eubank being permitted to testify because he had been in the courtroom after the rule had been invoked. Eubank was one of the witnesses excused by the court, and the court states that he was an officer, and what has been said with reference to bill of exceptions No. 1 disposes "bf appellant’s contention raised herein.

Appellant also complains at the court’s action in'permitting the state to prove by one of the witnesses that he arrested Virgil Montgomery on the night the robbery is alleged to have taken place. The bill wholly fails to show the connection in which the question was asked or to state any other fact concerning the matter, and in this condition of the record we are not able to say that any erro» is shown by this bill. Besides, the testimony shows that the appellant, Coulson, and,Montgomery were seen together immediately after the robbery occurred, and the testimony further reveals-the fact that the defendant made a statement to the officers when he was arrested to the effect that he got $9 of the money taken from Riggs, and that Coulson got $11, and the other $S went to the other boy.

Complaint is also made at the court’s action in permitting the witness Davis to testify that he got $7 in the form of a $5 bill and two $1 bills off of Montgomery, as well as some loose change that was in his pocket. We think, in view of the appellant’s confession to the officer Eubanks, that this testimony was clearly admissible, and we also think it was admissible to show that Montgomery had changed a $1 bill between the time of the robbery and the time he was arrested. This would be a circumstance tending to corroborate the voluntary statement made by the appellant to Eubanks to the effect that he got $9 of the injured party’s money; that Coulson got $11 of it; and that Montgomery got $8 of it.

Appellant complains because the court refused to instruct the jury to acquit in the event the jury should find that the taking of the money from Jimmy Riggs was done in a spirit of fun. The only testimony we find in the record suggesting the theory that the robbery was done in a spirit of fun is that given by the officer who arrested the appellant to the effect that, among other things, the appellant said when he asked him, “How come you boys to hold him up?” and that he answered, “We just decided we would have a little fun out of him.” In addition to this, the appellant testified that, when the officer asked him “if he had heard about Jimmy Riggs being high jacked, he said, ‘No, sir; I had not heard about him being high jacked; us boys held him up down there a while ago for fun — that was the reason we held him up.’, ” The court in his main charge to the jury instructed them that, if they believed from the evidence that the defendant acted in fun, and with no intention upon his part of appropriating Jimmy Riggs’ money or any part of the same to his own use and benefit, and with the intention of returning same to him, or if they had a reasonable doubt as to whether or not such were the facts and the intention of the defendant, then they should give the defendant the benefit of the doubt and acquit him.

We think this charge succinctly and properly presented the issue raised by the evidence, and protected every right that appellant had with reference to his defense. We have carefully considered the objections urged to the court’s charge, and fail to find any merit therein.

Believing that the appellant has had a fair trial, and that no error is shown by the record, it is our opinion that the judgment should be in ail 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.

On Motion for Rehearing.

LATTIMORE, J.

Our opinion is assailed by the motion in only one point, viz. •that we erred in saying that the trial court did not abuse his discretion in permitting certain officers to be exempted from the rule invoked by appellant regarding witnesses. Many authorities will be found cited under article 719 of Vernon’s O. C. P., holding that the trial court has great discretion in the matter of allowing witnesses to remain in the courtroom when the rule is invoked; one case being cited where the brother of deceased, who 'was familiar with the facts, was permitted to remain in the courtroom while other witnesses were under the rule. The witnesses who were-allowed to remain in the courtroom were-officers. The burden always rests on the one attacking a matter which is by the courts deemed erroneous only when it is shown that the discretion of the trial court has been abused to show some facts amounting to such abuse. We do not think the facts in the instant case show same, and the motion for rehearing will be overruled. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     