
    (85 Tex. Cr. R. 14)
    PITTS v. STATE.
    (No. 5320.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Criminal Law <§=>1056(2) — Failure to Charge — Late Exception.
    Where no instruction was asked, and no exception to the failure of the trial court to charge the law of accomplice testimony was taken, except in the motion for new trial, it came too late under the statute.
    2. Criminal Law <§=>1054(3) — Appeal—Conviction on Accomplice ÍMstijíony— Re- ' versal.
    Lack of timely exception to failure to charge law of accomplice testimony does not prevent reversal for failure of evidence to corroborate accomplices, a point which can be raised whether charge was given or not.
    3. Criminal Law <§=>510 — Testimony oe Accomplice— Corroboration.
    A conviction cannot be had upon the uncorroborated testimony of an accomplice.
    4. Criminal Law <§=>742(2) — Accomplice Testimony — Question por Jury.
    In prosecution for burglary, whether the two negro witnesses on whose testimony the state relied were accomplices of defendant, held for jury under evidence.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Harrison Pitts was convicted of burglary, and, appeals.
    Affirmed.
    Stanley Thompson, of Houston, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary on the testimony of two boys.

The facts are sufficiently stated in the companion case of Pitts v. State, 210 S. W. 198, in an opinion by Judge Morrow, this day decided. In this case the court did not charge the law of accomplice testimony, none was asked, and no exception taken to the failure of the court to so charge except in the motion for a new trial. This exception comes too late under the statute. This failure of the court, however, to charge the law applicable to accomplice testimony would not interfere with a reversal for failure of the evidence to corroborate the accomplice. This can be raised whether the charge was given or not, inasmuch as a conviction cannot be had upon the uncorroborated testimony of an accomplice. Under the view taken by the court of the facts it is a question of fact as to whether the boys were or not accomplices. Under the facts they would not be held as accomplices as matter of law. They denied being accomplices, and testified they did not know the property was stolen at the time they received it. If they were accomplices it was by reason of the fact they received the property at the time and place of the burglary. Under these circumstances it is the opinion of the court that the judgment should not be reversed. Had they been accomplices as a matter of law, a different conclusion would be reached; but as the record presents the matter, we are of opinion they were not accomplices as matter of law.

The judgment is affirmed.  