
    DOYLE v. STATE.
    No. 20620.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    
      W. J. Baldwin, of Beaumont, and R. H. Jernigan, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for burglary; the punishment assessed is confinement in the state penitentiary for a term of 7 years.

This is a companion case to Warren Doyle v. State, Tex.Cr.App., 133 S.W.2d 972, this day decided by us but not yet reported in State Reports. The facts set out in that case are substantially the same as are revealed by this record. It will be noted, however, that this record reveals that the testimony shows that R. J. Fairly was an accomplice as a matter of law. Appellant made substantially the same objections to the court’s charge in this case as he did in that case. In addition he made some objection to the court’s failure to charge that Fairly was an accomplice as a matter of law. An examination of the record shows that in this cause, as in the case of Warren Doyle, supra, the trial court merely stated the law relative to accomplices and the necessity of corroboration of their testimony and did not attempt to apply the law to the facts of the case. The charge as given seems subject to the same criticism as was noted in the opinion rendered in that case. However in this case the charge is further deficient for the reason that it does not state that Fairly is an accomplice witness as a matter of law when the testimony clearly showed that he was. See Sec. 711 and 712, Branch’s Ann. P.C. and authorities cited; Huntress v. State, 130 Tex.Cr.R. 492, 94 S.W.2d 752, 754.

It will not be necessary to consider appellant’s contention that the court erred in failing to grant his application for a continuance and the other questions presented such as the argument of the state’s attorney in view of the disposition we are making of the cause, since they will probably not arise again on another trial.

The judgment is reversed and the cause remanded.

PER CURIAM.

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.  