Ratcliff v. State , 130 Tex. Crim. 435 ( 1936 )

Appellant urges again that the evidence shows he was a principal offender in the robbery and could not, therefore, he convicted under the present indictment charging him as an accomplice to robbery, — or at least that the evidence raised the issue as to whether he was such principal, — and that the court should have told the jury by appropriate instructions that if they found he was such principal to acquit him under the present indictment. The reported cases upon the subject are drawn on such close lines under the facts of each particular case that ground for argument is nearly always present, and the instant case furnishes another illustration. Appellant has presented the matter in as strong a light as is possible from his viewpoint. We recognized upon original submission that the question was close and our opinion was not prepared until after the matter had been considered both in informal and formal consultation with all members of the court. We think a further recital of the, facts upon which turns the solution of the question would unnecessarily lengthen this opinion, but after further consideration we believe the conclusions expressed originally are correct under the facts before us.

Appellant also urges in his motion for rehearing that he excepted to the court's charge because he omitted to tell the jury that the accomplice witnesses must be corroborated not only as to the robbery itself, but also as to appellant advising and encouraging them to commit the robbery, and that the court erred in refusing to respond to such exception. See Cone v. State, 86 Tex.Crim. Rep., 216 S.W. 190; Hall v. State, 52 Tex.Crim. Rep., 106 S.W. 379; Lamb v. State, 101 Tex.Crim. Rep., 275 S.W. 1038; Langford v. State, 121 Tex.Crim. Rep., 50 S.W.2d 808; Melton v. State,127 Tex. Crim. 399, 77 S.W.2d 243. Appellant refers to paragraphs seven and sixteen of his objections to the charge as calling attention to the omission of which he now complains. We do not believe said paragraphs comply with Art. 658, C. C. P., which requires that the objections urged to the charge shall be "distinctly specified." If it was intended to call the court's attention to the point now urged it appears to be so involved and covered up with unnecessary verbiage that the trial court may well be excused for not discovering it.

The motion for rehearing is overruled.

Overruled.