But we have read the evidence heard. It appears that the jury room is upstairs over the District Court room, and that the stairway leading to the jury room is some seven or eight feet from the door of the District Court room. That during a recess of the court the jury retired to their room in charge of an officer. The jury came down the stairs and started to take their seats, when it was discovered that only eleven were present. The sheriff started up the stairway after the other juryman, when he was seen coming down. He explained that he was in the toilet. when the other jurymen started downstairs, and he came on as soon as he got out of the closet. The time from the time the eleven jurors. came downstairs to the time the last juror was coming down is estimated at from thirty seconds to a minute and a half. The record discloses it was impossible for him to have met any person. This in law would not be deemed a separation, and the court did not err in so holding. The judgment is affirmed.

Affirmed.

ALVIN JOHNSON V. THE STATE.

No. 3357. Decided December 16, 1914.

1.-Robbery-Principal-Circumstantial Evidence-Charge of Court.

Where, upon trial of robbery, the evidence was sufficient, although circumstantial, to connect the defendant with the transaction as a principal, and the court in a proper charge submitted the issue of principals and circumstantial evidence, there was no reversible error.

2. Same-Argument of Counsel-Allusion to Defendant's Failure to Testify.

In the absence of a bill of exceptions to the argument of State's counsel alluding to defendant's failure to testify, a complaint thereof made for the first time in the amended motion for new trial, eight days after the verdict had been rendered and judgment entered thereon, can not be considered on appeal. Davidson, Judge, dissenting.

3. Same-Motion for New Trial-Practice.

Where appellant contended that the State's counsel alluded to defendant's failure to testify, to which he reserved no exception at the time, that error might be assigned therefor for the first time after verdict in his motion for new trial. Held, that such contention is contrary, not only to the trend of the decisions of this court, but also contrary to the provisions of the Code of Criminal Procedure, and such complaint for the first time after verdict in the motion for new trial comes too late and presents no ground for reversal, although defendant could have successfully excepted thereto when the argument was made and requested a discharge of the jury and a new trial. Following Wright v. State, 35 Texas Crim. Rep., 367, and other cases. Davidson, Judge, dissenting.

4.-Same-Waiver-Practice on Appeal-Rule Stated.

It was the evident intent and purpose of the Legislature to provide that any error committed during the trial of the case must be excepted to at that time, to give the trial court an opportunity to correct his error, or the matter will be considered as waived, and this court will not reverse the case on account of any error that appellant did not consider of sufficient importance to complain of during the trial. Davidson, Judge, dissenting.

5.-Same-Allusion to Defendant's Failure to Testify.

Where appellant contended that the State's counsel in his argument alluded to defendant's failure to testify to which he failed to except during the trial, and further contended that this was such an error that if the court's attention had been called to it by reserving an exception at the time, it was such an error that the court could not have remedied, and that, therefore, it could be complained of for the first time after verdict in the motion for a new trial. Held, that such contention is untenable and that appellant should have excepted at the time and have requested the court to discharge the jury from a further consideration of the case. Following Coffman v. State, 73 Texas Crim. Rep., 295, 165 S. W. Rep., 939. Davidson, Judge, dissenting.

6.-Same-Argument of Counsel-Practice.

This court can not sanction the practice of appellant and his counsel sitting idly by, without calling the attention of the trial court to what to them seems hurtful and damaging argument, speculating on the result and taking chances on acquittal, with the intention that if the trial results adversely to them, to seek to have the verdict set aside on account of a matter of which they were aware, but did not complain of when it occurred. Davidson, Judge, dissenting.

7.-Same-Bills of Exception-Practice on Appeal.

Although the bills of exception to the argument of State's counsel were not properly verified and certified to by the trial judge and need not be considered on appeal; yet, this court treated the matter as though it was properly verified and holds that it was too late after verdict in the motion for new trial to reserve an exception to the remarks of State's counsel alluding to defendant's failure to testify, and the matter will be considered as waived. Davidson, Judge, dissenting.

Appeal from the District Court of Wichita. Tried below before the Hon. Edgar Scurry.

Appeal from a conviction of robbery; penalty, five years imprisonment in the penitentiary.

The opinion states the case.

T. R. Boone, for appellant.-On question of argument of State's counsel: Washington v. State, 77 S. W. Rep., 810; Anglin v. State, 80 S. W. Rep., 370; Good v. State, 66 S. W. Rep., 1099; Sanchez v. State, 69 S. W. Rep., 514; Hunt v. State, 12 S. W. Rep., 737; Brazell v. State, 26 S. W. Rep., 723; Barnard v. State, 86 S. W. Rep., 760; Bruce v. State, 53 S. W. Rep., 867; Martinez v. State, 85 S. W. Rep., 1066; Wallace v. State, 81 S. W. Rep., 966.

On question of bill of exceptions to argument of State's counsel in alluding to defendant's failure to testify: Beason v. State, 67 S. W. Rep., 96; Jenkins v. State, 93 S. W. Rep., 726; Fredericson v. State, 70 S. W. Rep., 754; Spangler v. State, 61 S. W. Rep., 314; McCarty v. State, 78 S. W. Rep., 506; Jones v. State, 33 Texas Crim. Rep., 7; Tyson v. State, 14 Texas Crim. App., 388; Bell v. State, 2 id., 215.

C. E. Lane, Assistant Attorney General, for the State.

HARPER, JUDGE.-Appellant was convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.

In this case the evidence would show that one Travis Keys robbed Frank Morgan of seventy-five dollars, and the State relied on circumstantial evidence to connect appellant with the transaction as a principal. The court, among other things, instructed the jury: "Before you can convict the defendant, Alvin Johnson, in this case you must believe beyond a reasonable doubt that Travis Keys actually committed the offense of robbery as defined above, and as charged in the fourth paragraph of this charge, and you must further believe beyond a reasonable doubt that the defendant, Alvin Johnson, was present at the time of the commission of said offense, and knowing the unlawful intent aided said Travis Keys by acts, or encouraged him by words or gestures in the commission of said offense, or that said Alvin Johnson, prior to the commission of said offense, had advised and agreed with the said Travis Keys to the commission thereof, and had done some act pursuant to said agreement, and that he was actually present at the time said offense was committed." The court also in his charge properly instructed the jury as to who are principals in the commission of an offense, and instructed the jury the law governing a case depending on circumstantial evidence in a way not complained of by appellant, and in language frequently approved by this court. (Branch's Crim. Law. sec. 204, and authorities there cited.) In this case we can not hold, as a matter of law, that the facts and circumstances shown by the evidence were insufficient to authorize the jury to find that appellant was acting with Keys in the commission of the offense, if an offense was committed by Keys, and this the jury found to be a fact. While this is a companion case to that of Travis Keys v. State, reported in 60 Texas Crim. Rep., 279, 131 S. W. Rep., 1068, on this trial there was no evidence offered tending to show that the money was won from the prosecuting witness in a gambling game, as was done in that case, and yet the court held in that case that the evidence was sufficient to support a conviction for robbery, and in this case (without the evidence as to gambling) we could hardly be expected to hold that the evidence was insufficient to sustain a conviction for robbery.

The only other question presented in the record that it is necessary to discuss is presented in three bills of exception reserved after verdict and after the motion for new trial had been overruled, all relating to the same matter. In these bills it is claimed the prosecuting attorney used the following language: "It is in the power of the defendant to show what manner of man he is, the State can not show it; the law does not permit it. It is within the mouth of the defendant to tell what kind of a man he is, and I would like to know what kind of a man I am prosecuting and you would like to know what kind of a man you are setting in judgment on." In the bills of exception it is shown by the allegations of appellant that when the language was used, no exception was reserved to the argument, but it is admitted that the first time it was complained of was in the amended motion for new trial, filed the 8th day of August, eight days after the verdict had been rendered and judgment entered thereon. Appellant contends that this was a direct

allusion to defendant's failure to testify, and although it was not excepted to during the trial of the case, it was a plain violation of article 790 of the Code of Criminal Procedure, which provides that a defendant may be permitted to testify in his own behalf, but his failure to testify shall not be considered as a circumstance against him, nor shall the same be commented on or alluded to by counsel in their argument, and he also contends that the error may be assigned for the first time after verdict in the motion for a new trial. This contention, we think, contrary not only to the trend of decisions of this court, but contrary to the provisions of the Code of Criminal Procedure. It has always been the rule in this court that evidence admitted on the trial, no matter how hurtful or harmful, if unobjected to during the trial of the case, and complained of for the first time after verdict in the motion for new trial, comes too late and presents no ground for reversal of the case, although if objected to at the time it was offered during the trial it would have presented ground for reversal. Wright v. State, 35 Texas Crim. Rep., 367; Gonzales v. State, 30 Texas Crim. App., 203; Simon v. State, 31 Texas Crim. Rep., 186, and cases cited under subdivision 1, section 1123, White's Ann. Code of Criminal Procedure, where the rule is stated to be: "A party can not be heard to complain of illegal and incompetent evidence to which he did not object at the time of its introduction." The law in these instances says certain testimony is inadmissible, yet if not objected to when offered, it is too late to complain. of the matter after the trial is completed and verdict rendered.

It was formerly the rule in this State, that objections to the charge of the court and errors pointed out therein for the first time in the motion for a new trial could be considered by this court, but the Legislature deemed this rule inadvisable, and changed it by specific legislative enactment. In chapter 138, of the Acts of the regular session of the Thirty-third Legislature (p. 278, Session Acts), it is provided that if the charge is erroneous, the judgment shall not be reversed unless the error was pointed out before the charge was read to the jury. And so urgent did they deem this matter the law declares "the fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act be in effect from and after its passage, and it is so enacted." Thus it is made plain that if we follow the plain spirit, intent and language of our Code of Criminal Procedure, if error be committed in the trial of the case, such error must be excepted to at the time of and during the trial, or we must not consider such matters on appeal. It was the evident intent and purpose of the Legislature to provide that any error committed during the trial of a case must be excepted to at that time to give the trial court a chance to correct its error, or the matter will be considered as waived, and this court shall not reverse a case on account of any error that appellant did not consider of sufficient importance to complain

of during the trial. As to the wisdom of this rule, or its fairness and justness, we do not feel called upon to express an opinion. If it is deemed hurtful and harmful, inequitable and unjust, an appeal should be made to the law-making body, the Legislature, to change it, and the appeal should not be made to us to annul its provisions.

However, appellant contends that the use of such language by the prosecuting attorney was such an error that if the court's attention had been called to it by reserving an exception at the time, it was such an error that the court could not have remedied, therefore it was not necessary to except to it at the time, but it could be complained of for the first time after verdict in the motion for a new trial. It has been held in this State, and in Illinois, Indiana, and Mississippi, that if counsel for the State refers to the defendant's failure to testify, the withdrawal of the obnoxious remarks, and the instructions of the court to disregard them, will not cure the error. To this rule, if an open question, the writer would not give his assent, for the great weight of authority is against such rule. In the Encyclopedia of Law, vol. 2, page 724, it is said: "The weight of authority fairly sustains the proposition that the court may repair the injury by excluding the comments and properly admonishing the jury," citing State v. Chisnell, 36 W. Va., 659; Com. v. Harlow, 110 Mass., 411; State v. Graham, 62 Iowa, 108; Calkins v. State, 18 Ohio, 366; People v. Hess, 85 Mich., 128; People v. Rose, 4 N. Y. Supp., 787; Ruloff v. People, 45 N. Y., 213, which is referred to as a leading case.

In the American & English Encyclopedia of Pleading and Practice, vol. 5, page 340, it is said that "in some jurisdictions it is held that where unwarranted and prejudicial comment is made upon the prisoner's neglect to testify, the proceedings thereby become so fatally infected that a withdrawal of the obnoxious remarks and instructions of the court to the jury to disregard them can not be held to neutralize their pernicious effect. But the weight of authority fairly sustains the proposition that the court may repair the injury by excluding the comments and properly admonishing the jury," citing Dimmick v. United States, 121 Fed. Rep., 638; Wright v. United States, 108 Fed. Rep., 805; Lee v. State, 73 Ark., 148; State v. Buxton, 79 Conn., 477; Robinson v. State, 82 Ga., 535; United States v. Kuntze, 2 Iowa, 480; Barnes v. Commonwealth, 101 Ky., 556; People v. Hess, 85 Mich., 128; State v. Killeher, 201 Mo., 614; People v. Hoch, 150 N. Y., 291; Williams v. State, 30 Ohio, 342; State v. Harrison, 145 N. C., 408; State v. Howard, 35 S. C., 197; State v. Young, 74 Vt., 478; Dunn v. State, 118 Wis., 82; Price v. State, 77 Va., 393.

Many other cases could be cited sustaining the rule that if the court properly reprimands counsel and instructs the jury that they must not consider such comment, it will not be ground for reversal of the case, but as this court has adhered to the rule, that such instructions will not cure the error, we would not be willing to overrule this unbroken line of decisions where the remarks were objected to and excepted to at the time they were uttered and while the trial was still in progress.