that another was present with the party alleged in conveying the money when the assault was made did not show any such variance. Following Hasley v. State, 87 Texas Crim. Rep., 444, and other cases.

4.-Same-Evidence-Co-Defendant-Husband and Wife.

Where the defendant objected to the introduction of the wife to appellant's co-defendant and she testified over appellant's objection, but the judgment is reversed and the cause is remande 1 on another ground, this court is not called upon to pass on this bill of exception; however, upon the question suggested by the bill this court refers to the case of Bluman v. State, 33 Texas Crim. Rep., 43, and other cases.

5.-Same-Accomplice-Theory of Defense-Charge of Court.

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Where the conviction depended chiefly apon the testimony of an complice, but defendant testified that he had no knowledge of any intent on the part of his co-defendant, but drove to the place where the robbery was committed at the direction of his companions, and that he was simply hired as a service car driver, and requested the court to submit this issue to the jury in a requested charge, which the court refused, same was reversible error, following Duncan v. State, recently decided.

Appeal from the District Court of El Paso. Tried below before the Honorable W. D. Howe.

Appeal from a conviction of robbery; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction is for robbery with punishment assessed at fifteen years in the penitentiary.

The indictment charges robbery of B. F. Darbyshire by an assault and violence, and by the use of a pistol. Motion to quash was presented on the ground that the indictment charged in one count both robbery and robbery by the use of firearms. The contention is without merit. Bell v. State, 77 Texas Crim. Rep., 146, 177 S. W. Rep., 966; Green v. State, 66 Texas Crim. Rep., 446, 147 S. W. Rep., 593.

Complaint is made (Bill of Exception No. 2) that the court declined to permit the filing of an application for suspended sentence on the ground that while Article 865b, Vernon's C. C. P., does not permit a suspended sentence in robbery, there is no such inhibition where the robbery is with firearms. There is only one definition of robbery in our Code (Art. 1327, Vernon's P. C.). The penalty only is enlarged where a firearm is used. The offense is still robbery. No error was committed in refusing to permit the plea.

The question is raised in various ways that there is a variance between the proof and the averments in the indictment, the contention being that the evidence shows the money to have been taken from E. E. Nold, whereas the indictment alleges it was taken from B. F. Darbyshire. Darbyshire was the president and manager of the Darby

shire-Harvie Iron and Machine Company. Nold was the secretary of the same concern. On the day of the robbery they had gone together to the bank and gotten the money to pay off the employes. The money was in a sack and the sack was placed on the seat between them in their car. They drove to the sidewalk immediately in front of their place of business. As they stepped out of the car Nold picked up the sack and the holdup instantly occurred. Nold threw the sack on the sidewalk behind him, and it was secured by one of the robbers. Both Darbyshire and Nold were assaulted and covered with pistols. by two men. Darbyshire testified that as manager he had the care and control of the money as they were taking it from the bank to their place of business. The most that can be said is that it may have been in their joint possession. The facts do not show such exclusive care, control and management in Nold as would render fatal an allegation of possession in Darbyshire. The fact that Nold and not Darbyshire picked up the sack to carry it across the sidewalk into their place of business would not we think make it inappropriate to still charge possession in Darbyshire. They were both present and acting together in conveying the money. Hasley v. State, 87 Texas Crim. Rep., 444, 222 S. W. Rep., 579; Guyon v. State, 89 Texas Crim. Rep., 287, 230 S. W. Rep., 408.

Francisco Ortiz, Guadalupe Torres and appellant were jointly indicted for robbery. Appellant only was on trial. The State introduced the wife of appellant's co-defendant, Torres, and she testified over appellant's objection. The bill of exception leaves it uncertain as to the condition of the prosecution against Torres at the time of the trial in the instant case. The bill recites that the case against Torres had not been finally disposed of, and that Torres himself was present at court, but was not called by the State to testify. We do not discuss this bill of exception at length, because the case must be reversed upon another ground, and whatever may have been the condition of the prosecution with reference to Torres it would likely not be the same upon another trial; however, upon the question suggested by the bill we refer to the following cases: Bluman v. State, 33 Texas Crim. Rep., 43; Dungan v. State, 39 Texas Crim. Rep., 115; Dill v. State. 1 Texas Crim. Rep., 278 and Bowmer v. State, 55 Texas Crim. Rep., 416, 116 S. W. Rep., 798.

Francisco Ortiz, one of appellant's codefendants, was used as a witness by the State. He testified that the robbery in question was the result of an agreement entered into by appellant, Torres and himself. He makes out a complete case against appellant of participation in the robbery. This is also supported by other evidence in the case. Appellant testified that he was a service car driver, and that Ortiz came to him on the morning of the robbery and hired his (appellant's car), with apepllant to drive the same; that he had no knowledge of any intent on the part of Ortiz and Torres to perpetrate a robbery, but that he drove to the place where the robbery was committed at the

direction of Ortiz and was sitting in his car reading a paper at the time the robbery was committed, and had no knowledge thereof; that Ortiz and Torres, after the robbery, re-entered the car and compelled him at the point of a pistol to drive the car away and aid them in the attempt to escape. In this state of the record appellant requested the following special charge, which the court refused to give. "If you should believe and find from the evidence that Ortiz and Torres employed the defendant herein for the purpose of driving around the city and that while so driving they, the said Ortiz and Torres, committed the offense of robbery by the use of firearms and that at said time and place of the alleged robbery the defendant herein was not cognizant of their said unlawful act, if any, and that thereafter he assisted the said defendants in an attempt to escape under coercion by the said Ortiz and Torres, then and in that event, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'Not Guilty.'

If appellant had no knowledge of the purpose of said codefendants to perpetrate a robbery, and was not cognizant that one was being committed at the time, he would not be guilty of any offense. After the robbery was committed, even though he may have then learned thereof, if he was compelled by his codefendants to drive the car away in their effort to escape, he would not be guilty of any offense. The charge requested pertinently submitted to the jury in an affirmative way appellant's defense. The charge given by the court did not give any presentation of appellant's defensive theory whatever. We quote from the case of Leon Duncan v. State, 90 Texas Crim. Rep., cided January 4, 1922:

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"Perhaps there is no better settled proposition in our practice than that where there is a defensive theory it should be submitted in the charge in an affirmative manner, and this is now imperative in a proper case where a special charge affirmatively submitting such defensive theory is requested, unless such affirmative presentation substantially appeared in the main charge. Martin v. State, 57 Texas Crim. Rep., 264; Walker v. State, 63 Texas Crim. Rep., 499; Porter v. State, 48 Texas Crim. Rep., 301; Art. 737, Vernon's C. C. P."

The court may have thought little reliance should be placed on appellant's testimony, and the jury may have given as little credence to it, but the issue was fairly raised and under the well settled law in this State, appellant was entitled to his affirmative presentation of it. For the failure to give the requested charge, the judgment of the trial court must be reversed and the cause remanded.

Reversed and remanded.

HUNT WATSON V. THE STATE.

No. 6490. Decided January 18, 1922.

1.-Burglary-Bill of Exceptions-Questions and Answers-Juvenile Law.

Where the bill of exceptions to the question of juvenility was in question and answer form, the same could not be considered or appeal. However, if the court considers the fragmentary part of the bill not subject to the objection pointed out, the evidence does not sustain the contention that the officers of the court purposely continued the case until after defendant became seventeen years of age in order to deprive him of his rights under the juvenile law.

2.-Same-Speedy Trial-Unreasonable Delay-Statutes Construed.

Under the provisions of the Constitution, Article 1, Section 10, the accused shall have a speedy, public trial, and if such unreasonable delay as the defendant suggested were attempted, he would not be without remedy; but it does not ccur to this court that such an attempt was made in the instant case; and if at the time of the trial he had passed the age limit, the purpose of the law, as written has been accomplished. Following McLaren v. State, 85 Texas Crim. Rep., 31.

3.-Same-Evidence-Convict-Pardon-Practice in Trial Court.

Where, upon trial of burglary, the conviction depended largely upon the testimony of an accomplice, and when the State offered his testimony the defendant introduced judgments of conviction against him, and the State, to show his competency as a witness, introduced a pardon from the Governor, to which defendant objected because the pardon failed to show that it covered a certain conviction in another county, and that when the witness was permitted to swear that he was convicted only one time in said county, stating the date, and it was manifest that this was the conviction for which he had been pardoned there was no error. Distinguishing Miller v. State, 46 Texas Crim. Rep., 59, and other cases.

4. Same-Pardon-Evidence-Delivery of Pardon-Practice in Trial Court. Where the defendant objected to the pardon because same had never been delivered to, or accepted by the witness, and thereupon the county attorney asked the witness if he accepted the pardon, and received an affirmative answer, there was no reversible error. Following Hunnicut v. State, 18 Texas Crim. App., 498.

5.-Same-Accomplice-Corroboration-Practice in Trial Court.

Where the accomplice testified to a complete case, and the movements of all the parties, both before and after the burglary, there was no error in permitting the State to introduce witnesses supporting him in many of the details related by him.

6.-Same-Evidence-Harmless Error-Practice in Trial Court.

Upon trial of burglary, where the State was permitted to introduce certain testimony, that before the night of the burglary, certain men came to his hotel and stopped, etc., and it was shown that defendant was not present at the time, the same should not have been admitted in evidence, but in as much that it was harmless error, there was no reversible error.

7.-Same-Argument of Counsel-Requested Charge.

When the defendant's counsel provokes improper remarks to be made by counsel for the State, the defendant will not be heard to complain of

such remarks. Following Norris v. State, 32 Texas Crim. Rep., 172, and other cases; besides, the jury was instructed not to consider State's counsel's remarks.

8.-Same-Accomplice Corroboration-Charge of Court.

It is impracticable to lay down a form of charge on accomplice testimony for general use, because facts arise wherein it would be inappropriate. However, where the charge submitted was a copy of one sanctioned by this court, and was applicable to the facts in the case, there was no reversible error. Following Campbell v. State, 67 Texas Crim. Rep., 301, and other cases. 9.-Same-Requested Charge-Corroboration.

Where defendant's requested charge, on the subject of corroboration was in effect a peremptory instruction to find appellant not guilty, there was no error in refusing same.

10.-Same-Sufficiency of the Evidence-Corroboration.

Where, upon trial of burglary, the corroboration of the accomplice was sufficient to meet the requirements of the law, and the evidence was sufficient to sustain the conviction, there was no reversible error.

Appeal from the District Court of Falls. Tried below before the Honorable Prentice Oltorf.

Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Nat Llewellyn, for appellant.-On question of charge of accomplice: Baggett v. State, 151 S. W. Rep., 560; Crawford v. State, 34 id., 927, and cases cited in opinion.

R. G. Storey, Assistant Attorney General, for the State.-On question of accomplice testimony: Adams v. State, 141 S. W. Rep., 527. and cases cited in opinion.

HAWKINS, JUDGE.-Conviction is for burglary. Punishment two years in the penitentiary.

The indictment charging accused with the offense of burglary was returned into court on June 21, 1920. On October 4th, 1920, appellant filed his affidavit setting up that he was born December 4, 1903, and was therefore under seventeen years of age, and asking that the felony prosecution be dismissed. The record shows no action by the court on the motion at that time. On January 31, 1921, appellant filed another affidavit, referring to the former one filed by him, alleging in the latter "that the county attorney postponed said cause and refused to try same, and did it with the deliberate purpose of waiting until after the defendant became seventeen years of age; that defendant was at all times ready, willing and anxious to be tried on said motion."

90 T. C.-37