The offense is assault with intent to rob; the punishment confinement in the penitentiary for seven years.
L. E. Johnson was in charge of a garage belonging to Duke Martin. The testimony of appellant and his witnesses was to the effect that Johnson got appellant and one Pettiett to go to the garage for the purpose of committing robbery, the plan being that Johnson would ostensibly be one of the victims of the robbery, and that the spoils would be divided with Johnson. Appellant and Pettiett drove to the garage at night, in appellant's Chrysler car. Appellant sat in the car, while Pettiett entered the building with drawn pistol. Shortly before the attempted robbery, Duke Martin informed the officers that some parties in a Chrysler car would attempt to rob his garage. The officers came upon the scene as Pettiett entered the garage, and someone shot Pettiett in the face. Johnson was in the garage when Pettiett entered and held up his hands, as did others present. Pettiett and appellant were arrested. The state failed to use Johnson and Duke as witnesses. Appellant admitted his part in the attempted robbery, and advanced the theory that Johnson and Duke entered into a conspiracy to induce appellant and his companion to attempt the holdup, in order that the officers might kill them.
After the jury had been impaneled, the court excused the remainder of the panel. The private prosecutor demurred, stating in the presence and hearing of the jury that there were other indictments against appellant which the state expected to try during the week. Appellant excepted to such remark, and the court instructed the jury to disregard it. Later, on cross-examination, over proper objection, counsel for the state elicited from appellant the fact that other indictments growing out of the same transaction for which he was being tried had been returned against him. When objection was made the court permitted the reception of the testimony, but advised counsel that he would later determine whether such testimony was admissible. Having concluded that the testimony was inadmissible, the jury were instructed in the main charge that it was withdrawn from their consideration. Other than these charges, appellant had never been indicted. Considering together the remark of the private prosecutor and the reception of the testimony which the trial court determined to be inadmissible, it is clear that error was committed. While appellant admitted his guilt, he received much more than the minimum penalty, and this in a case in which the jury would have been authorized to conclude that he was the *Page 462 victim of a "frame-up" on the part of Johnson and Duke. We would not feel warranted in reaching the conclusion that the action of the court in withdrawing the testimony saved appellant from harm. See Branch's Annotated Penal Code of Texas, section 166.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.
ON STATE'S MOTION FOR REHEARING.