
    CADE v. STATE.
    (No. 10732.)
    Court of Criminal Appeals of Texas..
    May 25, 1927.
    Rehearing Denied June 24, 1927.
    1. Criminal law <&wkey;7-92(21 — Charge on law of principal held not error, where evidence raised issue both as to law of principal and alibi.
    Where evidence in prosecution for robbery raised issue both upon law of principal and as to defense of alibi, giving charge on law of principal did not constitute error.
    2. Criminal law <&wkey;423 (I) — Evidence of acts and conduct of codefendants at time of alleged robbery held admissible to prove corpus delicti.
    Where, in prosecution for robbery, evidence justified conclusion that defendant was principal acting with codefendants, evidence as to acts and conduct of codefendants at time of alleged robbery was admissible to prove corpus delicti of offense.
    3. Criminal law <&wkey;338(2) — Every fact and circumstance shedding light on transaction is admissible, where circumstantial evidence is relied on.
    Where circumstantial evidence -is relied on for conviction, every fact and circumstance shedding any light on transaction is admissible, and should be submitted to jury for their consideration.
    4. Criminal law &wkey;j459 — Testimony that automobile, found near place of defendant’s arrest, with letter addressed to him therein, made same noise as automobile used in robbery, held admissible.
    In prosecution for robbery, testimony that automobile driven to place of robbery by assistant district attorney made same kind of noise as automobile heard on night of robbery held admissible, in view of evidence showing that automobile was found near place of defendant’s arrest and contained coat with letter ad-' dressed to him.
    5. Criminal law <&wkey;34l — Evidence that defendant was arrested with codefendants, identified as participants in' robbery charge, held admissible.
    In prosecution for robbery, evidence that defendant was arrested at same time and place as codefendants, who were positively identified as participants in robbery, held admissible as being a cogent circumstance tending to connect defendant with offense charged.
    6. Criminal law <&wkey;l 120(8) — Admitting evidence as to defendant’s arrest at certain place held not inadmissible as proving another offense, in absence of showing in record.
    In prosecution for robbery, admitting testimony that at time of defendant’s arrest he was at a certain place held not inadmissible as tending to prove another and different offense, in absence of anything in record tending to show that presence at such place was violation of law or that he was then engaged in commission of other offense.
    7. Criminal law <&wkey;>364(3) — Evidence as to what defendant was doing when arrested is admissible as res gestae of the arrest.
    Any evidence as to what defendant, charged with robbery, was doing at time he was arrested,' is admissible as part of res gestee of arrest.
    8. Criminal law <&wkey;824(5) — Failure to Instruct jury not to consider evidence as to defendant’s actions while under arrest, after sustaining objection, held not erroneous, in absence of request.
    Where court sustained objection to questions relative to defendant’s trying to remove watch and chain while under arrest and not being properly warned, failure to instruct jury not to consider such evidence held not erroneous, in absence of showing request therefor either verbally or in writing.
    9. Criminal law <&wkey;>424(l) — Evidence of finding bullets on codefendant arrested with defendant held admissible.
    Where evidence in prosecution for robbery showed that a pistol was used by one of co-defendants at time of robbery, evidence given by officer as to taking bullets from codefend-ant at time of arrest, together with that of defendant and others with whom he was found at such time, held admissible.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    R. C. Cade was convicted of robbery, and he appeals.
    Affirmed.
    Davenport & Crain, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

Appellant was convicted of the offense of robbery, and his punishment assessed at eight years in the penitentiary.

We find in the record fifteen bills of exception.

The first two bills complain because the court charged upon the law of principal when the defense was an alibi. The evidence discloses there were several people present at' the commission of the offense, one of whom was not positively identified but was connected with the crime only by circumstantial evidence. This appellant is the one who was not positively identified, but the evidence discloses that he participated in the commission of the offense by remaining on the outside and keeping watch. There is also sufficient evidence in the record to warrant the jury in finding the appellant was actually on the inside and participated in the robbery. The evidence raises both issues, and the court committed no error in charging on the law of principal. The charge given was accurate and correct.

Bill of exception No. 3 complains of the proof of acts and conduct of the codefendants Henry Helms and W. E. Carter at the time of the alleged robbery, contending that same was not admissible because it was 'not shown that the appellant had any connection with them or was present at the time they robbed the bakery shop. The state relied on circumstantial evidence to prove that appellant was present, or just outside the building, co-operating with the two codefendants, who entered the building and robbed the proprietor. The jury having found that the appellant was a principal, acting with the codefendants, and there being ample proof to justify their conclusion, this evidence would be admissible to prove the corpus delicti of the offense. No error was committed in proving what occurred at the time of the commission of the offense; it being the only logical way in which the state could prove its case. Where circumstantial evidence is relied on for a conviction, every fact and circumstance shedding any light upon the transaction is admissible and should be submitted to the jury for their consideration.

Bill of exception No. 4 complains that the witness Martin Craig was permitted to testify that about a week after the robbery Harry Bishop, the assistant district attorney, brought a blue Oakland automobile to the bakery where the robbery occurred and experimented with the same by starting the motor and accelerating it, and that it made the same kind of a noise as the automobile which the witness Martin Craig had heard on the night of the robbery just as Carter and Helms were leaving his bakery, and that in the opinion of the witness it was the same automobile. It was in evidence that the ear' used on the night of the robbery made a peculiar and unusual noise or sound, and that, the car used in the experiment also.made.the same peculiar noise or sound. The evidence also shows that the automobile used in making the experiment was the car found in Port Worth near the place of the appellant’s arrest and afterwards returned to Wichita Palls and delivered to the wife of the appellant. At the time the car was found in Port Worth, there was found in it a coat in which was a letter addressed to the appellant. This was a circumstance in the case, and certainly admissible.

■ Bills of exception Nos. 5, 6, and 7 present no error.

Bill of exception No. 8 complains that the witness B. O. Wilkerson was permitted to testify that he arrested four men at the Port Worth Ice & Cold Storage Company on North Main street in Port Worth, and that the four men arrested were Carter, Helms, Duckenfield, and the appellant. The fact that the appellant was arrested in Port Worth with Carter and Helms, the two codefendants, who were positively identified as the two men who participated in the robbery, is a cogent circumstance tending to connect appellant with the offense charged.

Bill of exception No. 9 complains because the‘court permitted the witness E. C. Wilkerson to testify that, at the time of the appellant’s arrest, appellant was in the office of the Port Worth Ice & Cold Storage Company ; the objection being that this tended to prove another and different offense. There is nothing in the record indicating or tending to show that the fact that appellant was. in the office was any violation of any law or that he was at that time engaged in the commission of another offense. We see no error in the admission of this evidence.

Bill of exception No. 10 complains that the witness Wilkerson was permitted to testify that he was called on an emergency call and started out on North Main street; that he did not get to where he started, but stopped at the Port Worth I6e & Cold Storage Company; that the reason he stopped was that he saw four men there, two on the outside’ and two on the inside of the office, and that two of the men were standing at the window and two were standing out in the rain. The witness was then asked as to what they were doing, and the court sustained the objection as to the others, but permitted the state to ask what the appellant was doing, and the appellant then objected, for the reason that it did not show or tend to show or throw any light on the transaction for which appellant was being tried, and that it was a long time after the offense was committed, if any was committed. The witness was permitted, over appellant’s objection, to testify that the appellant was looking in a telephone directory and was inside the office, and the witness arrested appellant and took him to the city hall. Any evidence as to what the appellant was doing at the time he was arrested is admissible as a part of the res gestse of the arrest.

. Bill of exception No. 11 complains of the action of the learned trial judge in permitting the witness L. C. Wilkerson to testify that, while he was taking the appellant, together with the codefendants, to the city hall in a car, and while the witness was facing the appellant, that the appellant was “monkeying” with the chain of a watch, trying to get it out of his vest, and trying to take the watch out of his pocket, and was trying to unhook the chain out of the buttonhole of his vest. This was objected to because the appellant was under arrest, and was not properly warned, and was an act of the appellant while under arrest, etc. The court very promptly sustained appellant’s objection. The bill does not disclose that the jury was instructed not to consider this evidence, and we find nothing in the record showing where the appellant asked the court, either verbally or in, writing, to instruct the jury not to consider said testimony. With the bill and the record in this condition, we see no error in the ruling of the court.

Bill of exception No. 12 sets out the following complaint: B. N. Norwood was called by the state as a witness, and testified that he was a police officer in Fort Worth and was with B. 0. Wilkerson when appellant and the two codefendants were arrested and when they were brought to the city hall, where they were searched. The district attorney presented to the witness an envelope and asked him if this was Cade’s stuff, and, after the witness had testified to certain articles, among which were bullets, he was exhibited another envelope and testified that he took that off of Cade, one of the men who was arrested, and then the witness was asked, “How many bullets are there?” Appellant promptly objected to all of this testimony, and especially that concerning what was taken off of Carter, as irrelevant, immaterial, and prejudicial and occurred while the appellant was under arrest. The court overruled the objection and permitted the witness to testify that there were nine bullets in the envelope, that these were taken off of Carter, and that Carter was one of the men found with the appellant at the time of appellant’s arrest. We think this evidence was clearly admissible as a circumstance in the case, since the proof showed a pistol was used by one of the codefendants at the time of the robbery.

We do not discuss bill of exception No. 13, as it is apparent that the matters complained of go more to the weight of the testimony than to its admissibility.

Finding no errors in the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by tie Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

We have re-examined the statement of facts and the record in the light of the appellant’s motion for rehearing. We have failed to perceive any weakness in the testimony or error in the rulings of the trial court, of which complaint is made, which would require or justify a reversal of the judgment.

The motion is overruled. 
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