
    WATSON v. STATE.
    (No. 6490.)
    (Court of Criminal Appeals of Texas.
    Jan. 18, 1922.)
    (.Criminal law &wkey;>!09l (-11)— Bill of excep- ' tions in question and answer form not considered.
    ■ ■ Bill of exceptions, consisting almost entirely of questions and answers, cannot be considered in its entirety, under Code Cr. Proc. 1911, art. 744, Rev. St. art. 2059.
    
      2. Criminal law <&wkey;576(2) — Infants <&wkey;68— Delay in hearing motions for dismissal of felony prosecution until defendant had reached 17 years of age held not violative of his right to a speedy trial.
    Delay in hearing of defendant’s motions for dismissal of felony prosecution under the Juvenile Daw (Code Cr. Proc. 1911, art. 1195) until after defendant had reached 17 years of age ¡held not violative of defendant’s right to a speedy trial, under Const, art. 1, § ,10, where defendant became 17 years of age within two months after one motion was filed and within one month after other motion was filed, and where the court could not have heard the motion a portion of such time because defendant was in jail in other counties, and during another part of time because engaged in the trial of murder cases.
    3. Witnesses <&wkey;78 — Governor’s proclamation, granting convict pardon, held to show convict a competent witness.
    Governor’s proclamation, granting a convict a full pardon, hold to show him a competent witness, notwithstanding failure of pardon to state the year of conviction, where he testified on his voir dire examination that he had ■been convicted in the county specified in the ■pardon only one time.
    4. Witnesses &wkey;o49 — Convict, who accepted pardon on witness stand, held competent.
    Where Governor’s pardon of convict had never been delivered to the convict, but had Jbeen sent direct to the county attorney, who called convict as a witness, and who asked the convict, on the objection to the competency of his testimony, if the convict accepted the pardon, and was given an affirmative answer, the witness was competent, even though he had never seen the pardon and had no possession thereof and had had nothing to do with securing it.
    5. Criminal law <&wkey;423(l), 424(6) — Testimony as to movement of defendant and his accomplices and flight held admissible.
    In a prosecution for burglary, testimony as to the movements of defendant and his accomplices the day before the burglary, while on way to place where-the crime was committed, •during the burglary and after the burglary, during their flight, held admissible.
    6. Criminal law «&wkey;5í0V2. — Testimony as to association of defendant and accomplices before and after burglary held admissible in corroboration of accomplice’s testimony.
    In prosecution for burglary, testimony as to the association of defendant and accomplices before and after the burglary held admissible to connect defendant with commission of crime, in corroboration of testimony of self-confessed accomplice.
    7. Criminal law <&wkey;5l I (2) — Accomplice’s testimony as to accomplice’s acts held harmless, connecting defendant with commission otf crime.
    The state was required to corroborate testimony of confessed accomplice by evidence tending to connect the defendant with the commission of the crime.
    8. Crimina! law <&wkey;l 169(7) — Admission of testimony as to accomplice’s acts held harmless.
    In prosecution for burglary claimed to have been committed by' defendant and accomplices, the admission of testimony that during the evening before the crime was committed four men stopped at the witness’ hotel, as against the objection that the men were not shown to have been defendant and accomplices, held harmless.
    9. Criminal law <&wkey;726 — County attorney’s argument provoked by improper remarks of defendant’s counsel held not ground for reversal.
    In prosecution for burglary, in which defendant’s counsel in argument criticized county-attorney for permitting accomplice to turn state’s evidence against defendant, instead of defendant himself, in, view of defendant’s youth, the county attorney’s statement in argument that, he did not allow such accomplice to turn state’s evidence until after he tried to get the defendant to do so held not ground for reversal.
    10. Criminal law <§=»763, 764(18) — Refusal of special charge on corroboration of accomplice, in effect a peremptory instruction, held net error.
    Refusal of special charge on corroboration of testimony of an accomplice, which would in effect have been a peremptory instruction to find defendant not guilty, held not error.
    
      II. Criminal law <&wkey;5l I (2)— Evidence corroborative of testimony of accomplice held sufficient to connect defendant with crime.
    In a prosecution for burglary, evidence corroborative of the testimony of self-confessed accomplice held sufficient to connect defendant with the crime.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Hunt Watson was convicted of burglary, and he appeals.
    Affirmed.
    Nat Llewellyn, of Marlin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

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 4, 1920, appellant filed his affidavit, setting up that he was born December 4, 1903, and was therefore under 17 years of age, and askifig 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 17 years of age; that defendant was at all times ready, willing, and anxious to be tried on said motion.”

No order appears to have been made on the second affidavit. When the case was called for trial, .on April 4, 1921, appellant filed another affidavit, alleging that he was born November 4, 1903, and again charging that the officers purposely continued the case until after he became 17 in order to deprive him of his rights under the juvenile law. Article 1195, C. C. P. Testimony was heard by the court at this time, and is brought forward in á bill of exceptions, covering 25 pages of the transcript, and consists almost entirely of questions and answers. The bill in this form cannot be considered in its entirety. See article 744, C. C. P.; article 2059, R. S.; Vernon’s C. C. P. p. 537, note 21; Jetty v. State (No. 6407) 235 S. W. 589, opinion November 30, 1921; Parker v. State (No. 6447) 238 S. W. 943, opinion December 7, 1921; Hornsby v. State, 237 S. W. 940, and Johnson v. State, 239 S. W. — (both opinions December 14, 1921; McDaniel v. State (No. 6443) 237 S. W. 292, opinion December 1, 1921.

If we consider ' the fragmentary part of the bill not subject to the objection pointed out, the evidence does not sustain the contention, but indicates that during a part of the time appellant was in jail in other counties. The hearing on the motion could not have proceeded in his absence. While appellant was in jail in Falls county the court appears to have been engaged in the trial of some murder cases. The provision of the Constitution (article 1, § 10) providing “In all criminal prosecutions, the accused shall have a speedy public trial,” was intended to prevent the government from oppressing the citizen by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the customary administration of justice by imposing upon the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations. Ex parte Thurman,. 26 Tex. 710, 84 Am. Dec. 598; Harris’ Constitution of Texas, page 78. If such unreasonable delays as suggested above were attempted, an accused would not be without remedy. But it does not occur 'to us such attempt was made in the instant case. Two-affidavits were filed, the first giving accused’s birth as December 4, 1903, the second as November 4, 1903. If the first was correct as to date, then only two months elapsed, from the date of filing until he became 17-If the second gave the correct date, then only one month elapsed from the time the first was filed until his seventeenth birthday. The juvenile law was désigñed, not that one should escape punishment for crime, but to prevent one under 17 at the time of trial from going to the penitentiary. McLaren v. State, 85 Tex. Cr. 31, 209 S. W. 669. If at the time of trial he has passed the age limit the purpose of the law, as written, has been accomplished. We would be unwilling to give our approval to a course of delay for the solé purpose of depriving an accused of his privilege under the juvenile law, yet where the facts show him to have been more than 17 when tried, we would hesitate to give our unqualified assent to the broad proposition that the prosecution should be dismissed if continuance was brought about by the . state until such time as accused became more than 17 years of age.

When the state offered Charley Chambers as a witness, in order to show his ineompetency appellant introduced three judgments of conviction against him; two from Dallas county, both at the January term of court in 1910; one from Ellis county on April 11, 1910, at the February term of court. Punishment in each of these convictions was 2 years in the penitentiary, all being cumulative. To show his competency had been restored the state introduced the following pardon:

“Proclamation by the Governor - of the State-of Texás.
“To All to Whom These Presents shall Come:
“Whereas, at the January term, A. D. 1910, in the district court of Dallas county, state of' (fexas, Charley Chambers was convicted, charged with the offense of burglary and his punishment assessed at two years’ confinement in the state penitentiary; and
“Whereas, at said term of said court in said Dallas county, state of Texas, the^said Charley Chambers was convicted on a second charge of burglary and his punishment assessed at two years’ confinement in the state penitentiary; and
“Whereas, at the February term of the district court of Ellis county, state of Texas, the said Charley Chambers was convicted of the offense of burglary and his punishment assessed at two years’ confinement in the state penitentiary; and
“Whereas, the said Charley Chambers having served his full term of sentence in the state penitentiary in all three cases as aforesaid, was discharged therefrom on the 12th day of April, 1916, for the reason that the county attorney, Homer Jennings, of Palls county, Texas, and the county attorney, G. O. Crisp of Kaufman county, Texas, each advised that the said Charley Chambers was wanted in the respective counties mentioned to testify in several cases now pending in the courts of these counties, and further that the said Charley Chambers is now wanted to testify in a criminal case now pending in Falls county, state of Texas, wherein he is a material witness in said cause:
“Now, therefore, I. Pat M. Neff, Govérnor of Texas, do, by virtue of the authority vested in me by the Constitution and Laws of this state, hereby, for the reasons specified, now on file in the office of the Secretary of State, grant the said Charley Chambers a full pardon and restore him to full citizenship and the right of suffrage and the right to testify in court.
“Proclamation by the Governor of the State of Texas.
“To All to Whom These Presents shall Come:
“In testimony whereof, I have hereunto signed my name and caused the seal of state to be hereon impressed, at the city of Austin, this the 5th day of April, A. D. 1921.
“[L. S.] Pat M. Neff, Governor of Texas.
“By the Governor:
“S. L. Staple, Secretary of State.”

Objection was urged to the witness testifying because the pardon failed to show that it covered the conviction in Ellis county, there being omission to state the year of conviction as 1910. Over objection, Chambers was permitted to swear on his voir dire examination that he was convicted only one time in Ellis county, and that this occurred in April, 1910. It is made manifest by the certificate of the clerk to this judgment of conviction in April that it occurred during the February term, 1910.

The case of Miller v. State, 46 Tex. Cr. R. 59, 79 S. W. 567, 3 Ann. Cas. 645, cited by appellant, does not, we think, support his proposition. The question there discussed is not like the one now before us. But in the case of Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330, the identical question was presented. The pardon there stated incorrectly the date of conviction. The pardon was admitted, and witness, over objection, was permitted to testify on his voir dire examination that he had never been convicted but the one time. Article 792, C. C. P. The action of the trial court was sustained. In Thompson v. United States, 202 Fed. 401, 120 C. C. A. 575, 47 L. R. A. (N. S.) 206, the question was raised that the pardon failed to identify the witness as the one to whom issued, and the witness was permitted to testify that he had received the pardon and accepted it, and this was held sufficient identification. Reference to the pardon shows its purpose was to restore the competency of the witness, and the record presents no error in the particulars complained of.

Objection was also urged to the introduction of the pardon because same had never been delivered to or accepted by the witness. Bill No. 3. The pardon had been sent direct to the county attorney who had received it on the morning of the trial. Chambers had never seen it, or had possession of it, and had nothing to do with securing it. When the objection was made the county attorney asked the witness if he accepted the pardon, and received an affirmative answer. The Hunnicutt Case, supra, is authority for the correctness of the court’s action in holding the acceptance sufficient.

Charley Chambers, an accomplice, testified to a complete ease, being to the effect that he, Watson, Gathright, and Gla'ss burglarized the depot at Marlin on Friday night, the 28th of May, 1920, taking therefrom the safe, which they carried in an automobile some two miles from town, broke it open, and appropriated the money found. He testified to the movements of all the parties during the day before, at the time of, and after, the burglary until they reached Houston on Sunday morning, where they were arrested. We set out the substance of enough of his testimony to make clear the matters discussed with reference to bills of exceptions 5, 6, 7, 9, and 10. Chambers testified that he and the other three mentioned went from Temple to Marlin with the express purpose of committing the burglary; that while on the way, near Eddy, they run into another car, and broke the bumper off their car, and had the bumper taken off at Eddy; that he had seen at court both the man whose car they ran into and the man who took the bumper off their own ear. He also testified that when they went to the depot to commit the burlary Watson sat in the car, while he and the other two got out to get the safe; that a negro and a large man, as large as appellant’s attorney, were there, and that he (Chambers), Gathright, and Glass sat on a truck near the depot until everybody left when the three of them got the ,-safe, put it in the car, and, with Watson driving, went out about two miles from town, then down a lane a short piece, where the safe was thrown out; that Watson drove the ear bach to the main road and headed it towards Waco, while Chambers and the other two broke the safe open and took the money; that about the time the three of them reached the car after having rifled the safe, another car going towards Marlin, with two men in it, stopped, and one of them asked if they (the boys) needed any help, and, upon being told “No,” drove on. Chambers also testified that after the burglary -they went to Waco, from there to Austin, arriving there about 3 of 4 o’clock in the morning; that they slept until about 11 o’clock, when the four of them left in the ear, went through Brenham and Giddings, getting supper at the latter place; that he had seen the man around the courthouse with whom they had supper at Giddings. The state, over objection, then introduced witnesses to support Chambers on many of the details related by him, as shown in bills of exceptions Nos. 6, 10, 9, and 5.

We have been unable to discover any error committed in the reception of the evidence complained of. It was permissible to show the movements of all the parties the day before the burglary and while on their way to the place where committed, during the burglary, and after it was effected, and their flight. It was also proper for the state to show the association of the parties both before and after the burglary. Chambers, a self-confessed accomplice, testified in detail to these matters. Being an accomplice, he testified under a cloud. It was indispensable that the state corroborated him by evidence tending to connect the accused with the commission of the offense; but it was not improper for the state to support him with the testimony complained of, bearing upon the truth of his evidence on matters prior to and subsequent to the offense. This is also true with reference to Chamber’s testimony, wherein he was permitted to, state over objection (bill No. 2) that “he had seen in the courthouse a man with whom he ate supper,” the bill showing it was the witness Markisch to whom he referred.

Clyde Waters testified over objection ■(bills Nos. 7 and 8) “that on Thursday night before the alleged burglary four men came to his hotel in Temple and stopped; that he got some medicine for one of them whose finger was cut; the objection being that it was not shown that appellant was at the hotel on that occasion. We fail to find any evidence identifying the men as appellant and his three companions. It is not apparent to us how this testimony aided the state. The statement of the witness should not have been permitted, but we fail to find anything of a hurtful character making necessary the reversal of the case. This seems to be an instance where the admission of testimony that does not help the state cannot injure the •defendant. See note under section 96, page 61, Branch’s Ann. P. C. and authorities there cited.

Complaint is made .(bill of exception No. 13) that the county attorney, in the closing argument for the state, said to the jury that “he did not allow the witness Charley Chambers to turn state’s evidence until after he tried to get the defendant, Hunt Watson, to do so.” Objection was urged to said argument, and a special charge requested upon the subject, which was not given, but the court, in lieu therof, gave the following instruction.

“You are charged that there is ho evidence in the record regarding any act or offer of the county attorney with reference to Hunt Watson turning state’s evidence, and you will disregard the remark of said county attorney in that connection, and not consider same for any purpose.”

The bill is allowed, with the following explanation from the trial judge;

“It was in evidence that Charley Chambers, Hunt Watson and two others committed the offense. Charley Chambers turned state’s evidence, and testified for the state. It was shown that he was considerably older than Watson. Defendant’s counsel in argument criticized the county attorney for permitting Chambers to turn state’s evidence instead of Watson, and said that, the latter being the younger, it was a shame that the county attorney had not let him turn state’s evidence and send the criminal Chambers to the penitentiary. It was in reply to this criticism and clear inference that Watson would have turned state’s evidence if the county attorney had let him that the latter made the statement in argument complained of in this bill; notwithstanding such facts, the court gave a charge on the incident as shown in the bill.”

If appellant’s attorney used the language attributed to him by the court in his qualification to the bill there can be no doubt that he was leaving with the jury the inference that Watson would have turned state’s evidence if he had been permitted to do so by the county attorney. Judge Davidson, writing in Sinclair v. State, 35 Tex. Cr. R. 132, 32 S. W. 531, says:

“When a 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.”

The following cases are cited in the Sinclair opinion, some of which directly support the foregoing anouncement: Baker v. State, 4 Tex. App. 223; Williams v. State, 24 Tex. App. 33, 5 S. W. 658; House v. State, 19 Tex. App. 227; Mayes v. State, 33 Tex. Cr. R. 33, 24 S. W. 421; Norris v. State, 32 Tex. Cr. R. 172, 22 S. W. 592. We, therefore, conclude that no reversible error would have been presented, even had the court declined to charge the jury not to consider the county attorney’s remarks, and surely no error of a serious character can be contemplated in view of the charge given.

Some complaint is made at the charge on corroboration of an accomplice. The one given is a copy of the charge in Campbell v. State, 57 Tex. Cr. R. 301. 123 S. W. 583. The charge has been approved in many cases, and sometimes criticized. It is not appropriate under all circumstances. Where appropriate we are of opinion the charges approved in Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101, and in Oates v. State, 67 Tex. Cr. R. 496, 149 S. W. 1194, are better, and more in line with the suggestion in Standfield v. State, 84 Tex. Cr. R. 437, 208 S. W. 538. It is impracticable to lay down a form of charge for general use because facts arise wherein it would be inappropriate. We are unable to perceive, however, wherein the charge given could have been hurtful in the instant case. The burglary was established by testimony other than the accomplice. His testimony does more than connect appellant with the offense. It makes a complete case against accused of guilty participation in its commission, and the corroborative evidence tended to connect him with the commission.

Appellant requested a special charge on the subject of corroboration, and urges error because of its refusal. Bill No. 14. We are of the opinion that if the court had given the requested charge it would have been in effect a peremptory instruction to find appellant not guilty. After embracing! certain matters relative to corroboration, which, if not on the weight of the testimony, approach very near thereto, the charge seems to be complete, and is closed with a period; then follows this as the concluding sentence, disconnected entirely from other portions. “You must acquit the defendant.” Thinking perhaps a mistake had been made in copying the charge in the bill of exceptions as it appears in the record, we have examined the charge as set out in another place in the transcript, and find it appears in the same condition. The court properly declined to give the special charge.

The corroboration of the accomplice was sufficient to meet the requirements of the law. Sheriff Moore saw and recognized appellant at the wheel of the car, which was standing at the mouth of the lane near where the safe was broken open. He saw three other parties approach the car from the lane. For some reason he took the number of the car and made a memorandum of it. He next saw the car in Brenham. There can be no question but that it was the ear which was used at the time of the burglary, and in which the party escaped. This evidence tended to connect the appellant with the burglary.

Finding no reversible errors in the record, the judgment must be affirmed. 
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