
    DRYSDALE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    1. Robbery (§ 24) — Assault with Intent to Rob—Sufficiency of Evidence.
    Evidence held sufficient to support a conviction of assault with intent to commit robbery.
    [Ed. Note.—For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.]
    2. Criminad Law (§ 59)—Principals—Par-ticipation in Offense.
    Under Pen. Code 1911, art. 74, providing that all persons are principals' who are guilty of acting together in the commission of an offense, accused was a principal and not an accomplice where he was present and assisted in an assault with an intent to commit robbery, although he claimed that he thought his code-fendant was a deteetivé and that he was helping him to arrest the prosecuting witness.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    3. Cbiminab Law (§ 1173)—Appeal—Harm-less Beeob.
    Under Pen. Code 1911, art. 41, providing that temporary insanity produced by the voluntary recent use of ardent spirits shall not be an excuse for the commission of a crime, but that evidence thereof may be introduced in mitigation of the penalty, and that it shall be the duty of the judge to instruct the jury accordingly, the failure of the judge to give such an instruction was harmless, even if the evidence raised that issue, where the jury fixed the lowest penalty prescribed by law for the offense charged.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    J. W. Drysdale was convicted of assault with intent to rob, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otner oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was convicted in the district court of Bexar county under an indictment charging him with assault with intent to commit robbery, and his punishment assessed at confinement in the penitentiary for the term of two years.

The evidence on the part of the state shows that at about 1 a. m. on the 22d of November, 1912, prosecuting witness Rafael Davila, in San Antonio, started home when two parties stopped him; the little one (defendant) told him that the ot'her was a sheriff, and the other party, Edwards, told Da-vila that he was sheriff and was looting for him, and Edwards then hit prosecuting witness with the pistol; defendant went through his pockets. Prosecuting witness says he told them to take his money but not kill him. Two policemen, Zapata and Cardenas, saw these three parties and went up to them and heard Davila say, “Take my money but don’t kill me,” and saw the defendant with his hands in prosecuting witness Davila’s pocket, and the codefendant Edwards with a gun drawn on the said Davila.

The defendant’s testimony tended to show that he thought Edwards was a detective; that he had a star-shaped badge, and told defendant he was working for the government ; that on the night in question he took Edwards to the show, and that they drank a good deal of intoxicating liquors during acts and after the show, and that he did not know what he was doing, he was so drunk; that he thought he was helping Edwards to arrest the prosecuting witness. There are no bills of exception in the record, and the only matters presented for review are contained in the motion for new trial.

The first complaint is that the verdict of the jury is contrary to the law and the evidence. There is no merit in this contention. The evidence is amply sufficient, and shows that the defendant is guilty as charged in the indictment.

The second complaint is that the court erred in failing to instruct the jury to acquit defendant because the indictment charges him as principal and the proof shows that he was not a principal but an accomplice. There is no merit in this contention. Article 74, R. P. C., defines “principals” as follows: ' “All persons are principals who are guilty of acting together in the commission of an offense.” The evidence in this ease shows that the defendant was present and assisted in the commission of the offense. Therefore he was a principal, and this complaint of appellant is without merit.

The third complaint is that the court erred in failing to charge on the recent use of ardent spirits. Article 41, R. P. G., provides that temporary insanity produced by the vbluntary recent use of ardent spirits shall not constitute an excuse for the commission of a crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced in evidence by defendant in mitigation of the penalty, and it shall be the duty of the judge in such a case to instruct the jury in accordance with said provisions. It may be that the evidence raised the issue that he was temporarily insane, and the court should have charged the jury the law as to the recent use of intoxicating liquors, yet in this case, since appellant got the lowest penalty prescribed by law for the offense with which he was charged, no injury could have resulted to him from the failure of the court to so charge the jury. It is no defense to crime, and the jury could not have done other than as they did do, if he had so charged them.

The judgment is affirmed.  