
    KIRBY v. STATE.
    (No. 11028.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    Criminal law <&wkey;-5I0 — State fails to make out case without other testimony than that of accomplice showing defendant’s presence at robbery charged (Code Cr. Proo. 1925, art. 718).
    Unless there is other testimony than that of accomplice, tending to show presence of defendant at time and place of robbery with which he was charged, state, under Code Cr. Proc. 1925, art. 718, has wholly failed to make out its case, no matter how strong other testimony tends to show defendant’s guilt as accomplice to offense of robbery.
    Commissioners’ Decision.
    Appeal from District Court, Archer County; E. G. Thornton, Judge.
    Bob Kirby was convicted of robbery, and he appeals.
    Reversed and remanded.
    L. C. Counts, of Olney, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted for the offense of robbery,' and his punishment assessed at five years in the penitentiary.

The appellant was jointly indicted with Whitie Martin and A. G. Hawkins. A severance was granted, and appellant alone put on trial. , The state relied for a conviction on the testimony of the accomplice, A. G. Hawkins. Hawkins testified that he and Whitie Martin and appellant robbed G. E. Eubanks, the man named in the indictment; that Hawkins held the gun on Eubanks, and Whitie Martin and appellant got the money.

Appellant denied any connection whatever with the robbery, relying upon an alibi as a defense.

The learned trial judge submitted the case on the theory that appellant was a principal offender, by reason of having advised and agreed with Hawkins to rob said Eubanks, appellant being present at the time of the robbery. The trial judge also submitted the law as to accomplice testimony. Hawkins was an accomplice, and unless there be other testimony than that of Hawkins which tends to show the presence of appellant at the time and place of the robbery, the state has wholly failed to make out its case, no matter how strong the other testimony might tend to show the guilt of appellant as an accomplice to the offense of robbery. We have searched the record in vain for testimony other than that of Hawkins tending to connect appellant with the alleged robbery. There is •nothing in the record tending to show the presence of appellant at the scene of the robbery except the testimony of Hawkins. In our opinion the corroborative evidence is not sufficient to warrant a conviction. Noble v. State, 100 Tex. Cr. R. 404, 273 S. W. 251; Mann v. State, 102 Tex. Cr. R. 34, 276 S. W. 1100; Ross v. State, 104 Tex. Cr. R. 601, 286 S. W. 221; article 718, C. C. P. 1925.

For the reason assigned above, the judgment is reversed and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court., 
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