¶1The appellant, with Horace Bell and Wm. E. Jones, were jointly indicted, in the District Court of Harris county, at the August term, 1874, charged with robbery from the person of James Highlander. Hnder the Act of March 16, 1874, Bell obtained a severance, and the District Attorney having dismissed as to Jones, the defendant, Ring, was put upon his trial, which resulted in his conviction, his punishment being assessed by the jury at seven years in the penitentiary. The motion of defendant for a new trial being overruled, the defendant appealed, and presents eight assignments of error as grounds for a reversal of the judgment.
¶2We will only notice a portion of the fourth and fifth assignments of error, as they embrace all that is necessary foi; the decision of the case.
¶3The fourth assignment states : “ Because the said verdict of “ the jury does not find defendant guilty of any offense whatever, and is, in effect, no verdict to sujiport a judgment of the *283“ court; ” and the fifth assignment of error is : “ Because of the “ errors of the court in its charge to the jury, as set out in said “ divisions three and four in the motion for a new trial, whereby “ the jury were misled and misdirected in said charge.”
¶4The defendant was indicted as a -principal in the robbery, under Article 743 of the Criminal Code, and, under the charge of the court, was found guilty under Article 218 of the Criminal Code. This article reads: “ Any person who ad vises, or “ agrees to the commission of an offense, and who is present “ when the same is committed, is a principal thereto, whether “ he aids or not in the illegal act.”
¶5The verdict was : “ We, the jury, find the defendant, H. C. “ Bing, guilty of agreeing to the commission of the offense, “ and (he) is liable as a principal offender, and assess the pun- “ ishment,” etc.
¶6The jury draw the conclusion that the accused is guilty as a principal offender by reason of the fact previously found, of his agreeing to the offense. His agreeing to the commission of the offense is not sufficient to support the judgment, and it is on this fact found that the opinion of his guilt rested in the minds of the jury. Article 218 makes it necessary that there should be an antecedent advice given, or an agreement to the commission of the offense, with a being present at the time the illegal act is committed, to sustain the charge laid in the indictment. The verdict, not being responsive to the indictment, should have been set aside, and a new trial granted. As this case will be remanded, it is proper to remark that the fifth assignment of error, relative to the charge to the jury, is well taken.
¶7The portion specially complained of by appellant is as follows : “ If you believe, from the evidence, that the robbery “ was committed as charged in the indictment, and that the- “ defendant, Bing, was present at the time, and saw the com- “ mission of the offense, and that he made no sort of resist- “ anee nor remonstrance, but sat quietly by, or lay quietly by, “ and saw the offense perpretrated by two men upon one, and “ that he made no effort to prevent it, or to raise an alarm, and *284“ was not himself in fear of his life, or of bodily harm from the “ robbers, so as to deter him from making any demonstration “ to prevent the commission of the offense, and that he subse- “ quently made no effort to expose the circumstances, but con- “ cealed the same, then he, the defendant, is guilty of agreeing “ to the commission of the offense, and is .liable as a principal “ offender.”
¶8This portion of the charge informed the jury that the presence of the accused at the time of the robbery, his failure to give the alarm, his silence, his inaction, and the supposed concealment of the offense by him, were sufficient to authorize a conviction. This is not the law. Article 218 of the Code requires an advice given or an agreement entered into to commit the offense, coupled with an actual presence at the place and time of the doing of the illegal act, to sustain a verdict of guilty in a case of this character. The charge was calculated to mislead the jury, it omitted to state the law applicable to the case.
¶9The defective verdict, and the errors in the charge, required the granting defendant a new trial.
¶10The judgment is therefore reversed, and the cause is remanded.
¶11Reversed and remanded.