The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
The State’s motion is predicated on the legal proposition that the unexplained possession of property recently stolen will support a conviction for the theft thereof, and that if accused is found in possession of a part of the stolen property the jury may infer therefrom that he stole all of it. The proposition is so firmly fixed as correct that a citation of authorities is unnecessary. But recognition of such proposition as the law by no means relieves the State of difficulty under the facts here present.
If the taking of Mr. Locklar’s property was the only element necessary in a robbery charge then the control and management of his car by appellant would support the conclusion that appellant also took or participated in the taking of Locklar’s money and watch, but to be guilty of robbery as charged appellant must have participated as a principal in the assault and violence upon Locklar followed by the taking of his property.
All persons who act together in the commission of an offense are principals. Art. 65 P. C. Likewise, when an offense is committed by one person, but another is present, and
knowing the unlawful intent,
aids by acts or encourages by words or gestures, the one who commits the unlawful act, the person so aiding or encouraging is also a principal. Art. 66 P. C. Also, any person who advises or agrees to the commission of an
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offense and who is present when the same is committed is a principal whether or not he aids in the illegal act. Art. 69 P. C.
The fact is undisputed that appellant was present when his companion, the soldier, assaulted Mr. Locklar, and rendered him unconscious. The facts are not sufficient to support the conclusions that he had advised or agreed with the soldier that they would assault and rob Mr. Locklar or any other person. “Mere presence, in the absence of proof of having agreed to commit the offense, will not constitute one a principal.” Sec. 681, Branch’s Ann. Tex. P. C., and authorities thereunder. Mr. Locklar’s own evidence acquits appellant of any act done or word said that would support the inference that appellant knew of the unlawful intent of the soldier to assault him (Locklar), or which encouraged the soldier or in any way aided him in said assault.
If an assault be committed but no' property taken, the one guilty
of
the violence could be prosecuted for an assault, but not for robbery. Clemmons v. State, 161 S. W. 973 . Turn the proposition around by the following illustration. B, intending to rob A assaults him and renders him unconscious; C is approaching and sees the assault but is unaware of B’s intention; B becomes alarmed at C’s approach and flees; C takes advantage of A’s unconscious condition, rifles his pockets and appropriates his money and watch. Certainly C would be guilty of some offense but not of robbery because he did not participate as a principal in the assault and violence upon A which produced the condition which made it possible for C to get possession of A’s property.
The mere presence of appellant when the soldier struck Mr. Locklar and rendered him unconscious in the absence of previous agreement to rob him, in the absence of aid or encouragement to the soldier in his act of violence, in the absence of knowledge on appellant’s part of the soldier’s intent, would not render appellant guilty of robbery, however reprehensible his conduct may have been in subsequently taking or participating in the taking of Mr. Locklar’s property.
The case presents an anomaly in that if Mr. Locklar had not survived and testified on the trial the inference from the other facts would have supported the conviction of appellant for
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participation in the robbery, but Mr. Locklar’s own evidence refutes the inferences upon which appellant’s guilt would rest.
The State’s motion for rehearing is overruled.