
    CANO v. STATE.
    (No. 6010.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1920.)
    1. Crimina! law <S=» 1169(5) — Prejudice from illegal testimony of other offenses not diverted by limiting charge.
    In a prosecution for robbery, where evidence was admitted for the state of other criminal acts by defendant and of his obtaining money by false pretenses and fraudulent devices subsequently to the robbery charged, the trial court on defendant’s request should have charged the jury not to consider any testimony of other offenses, etc., and a charge attempting to limit such evidence of other offenses to show defendant’s system and methods, if any, was erroneous, as illegal testimony cannot be limited, and the prejudice arising from it thus diverted.
    2. Criminal law <§=>372(1) — Evidence of other subsequent crimes inadmissible.
    In a prosecution for robbery, evidence of defendant’s other criminal acts and the obtaining of money by false pretenses and fraudulent devices after the robbery charged was inadmissible to show system and methods.
    3. Criminal law <@=>694 — Requested instruction proper method to request withdrawal or exclusion of illegal testimony.
    In a prosecution for robbery, where the court improperly permitted the state to introduce evidence of other criminal acts by defendant subsequent to the robbery charged, defendant’s requested instruction not to consider any such testimony was a proper method to request the withdrawal and exclusion of the illegal testimony.
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Agustín Cano was convicted of robbery, and he appeals.
    Judgment reversed, and cause remanded.
    W. W. Winslow, of Laredo, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of robbery, his punishment being assessed at 15 years in the penitentiary.

The indictment charged the robbery of Maria Aristi. The state proved by the injured party and other testimony a case of robbery. There was no question of identity or intent from the state’s evidence.

Over objection of appellant the state was permitted to introduce evidence of other criminal acts and the obtaining of money by false pretenses and fraudulent devices occurring subsequent' to the alleged robbery of Maria Aristi. The obtaining of the money occurred in this way: That appellant at night crossed over the Bio Grande in a skiff or canoe with a number of people in violation of the law, for which he charged $3.50 for each person. Other cases of criminal acts shown by the state also occurred subsequent to this case. The state insists these bills cannot be considered because filed too late. The record contains an allowance of time after the adjournment of court, but the bills were not filed within the time allowed. However, when the court’s charge was submitted to counsel they objected to that portion of it which limited the effect of such testimony. The court thus instructed the jury:

“If you believe from the evidence beyond a reasonable doubt that the defendant did commit such alleged robberies, other than the alleged robbery of said Maria Aristi for which he is now being prosecuted, and did commit such alleged thefts by fraud, then you are charged that if you consider said testimony of other offenses at all you can only do so for the purpose for which it was admitted, namely, to show the system and methods, if any, of the defendant; and it can only be used by you, if it does, to pass upon the issue as to whether or not he committed the alleged offense of robbery of Maria Aristi, for which he is on trial,” etc. ;

Objection was promptly urged to tbfs charge and this requested instruction was refused, and defendant excepted:

“In this case you are specially instructed not to consider any testimony adduced upon the trial to this case which connects, or pretends to connect, the defendant with any other offense, and you are only to consider the testimony of Maria Aristi and her two companions in arriving at the guilt or innocence of this defendant.”

Whether we consider the bills of exception to the introduction of the testimony or not, this is a charge asked by appellant to exclude from the consideration of the jury the testimony. We are of opinion that the charge of the court should not have been given, and that the charge requested by appellant should have gone to the jury. Illegal testimony cannot be limited, and the prejudice arising from its introduction thus diverted. Oases are numerous upon this proposition. That the testimony was inadmissible see Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501; Hinson v. State, 51 Tex. Cr. R. 105, 100 S. W. 939; Johnson v. State, 50 Tex. Cr. R. 118, 96 S. W. 45; Lamar v. State, 49 Tex. Cr. R. 569, 95 S. W. 509; James v. State, 40 Tex. Cr. R. 195, 49 S. W. 401; Allen v. State, 73 S. W. 397; Walker v. State, 72 S. W. 402. That the requested instruction was a proper method of requesting the withdrawal and exclusion of the illegal testimony see Morton v. State, 43 Tex. Cr. R. 536, 67 S. W. 115; Stone v. State, 45 Tex. Cr. R. 93, 73 S. W. 956; Hearne v. State, 50 Tex. Cr. R. 431-443, 97 S. W. 1050.

The judgment is reversed, and the cause remanded. 
      ffi=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     