The offense is robbery by the use of firearms and the punishment assessed is confinement in the state penitentiary for a period of five years.
It appears from the record that on Sunday, November 17, 1946, Lacy Alexander, Elbie Hart, Billie Wayne Harrell, and appellant came from Pittsburg to Mt. Pleasant in Alexander’s automobile. Some time about 10:30 or 11:00 P. M. Harrell and Hart returned to Pittsburg in Alexander’s automobile leaving Alexander and King at Mt. Pleasant. Soon after Harrell and Hart had left, appellant and Alexander engaged a taxi to take them to Charlie’s Pig Stand to look for Alexander’s car. Not finding the automobile, they employed the cab driver, Howard Wallace, to carry them to Pittsburg. While on the highway between Mt. Pleasant and Pittsburg, appellant drew a pistol and held it to the injured party’s side and said, “You do what I tell you to do.” That was at or near where Do Drop Inn had burned down. After they had driven to where a road turns off to Harvard Switch, he said, “turn off here,” and Wallace drove to the old Mt. Pleasant highway and there appellant said, “turn left and go down to the flat,” where he said stop. The cab driver testified as follows: “I stopped and there they made me get out of the taxi, he (meaning appellant) went through my pockets; *127took all the money out of my billfold; emptied my pockets; and took my watch. They told me to run, and I ran. I went to a farm house; engaged the farmer to take me to Mt. Pleasant where I reported it to the manager of the person by whom I was employed who immediately notified the officers.” Appellant took the witness stand, admitted going to Mt. Pleasant with the aforesaid three persons; that he and Alexander engaged a taxi to drive them around town; that they purchased several pints of whiskey which they consumed. As a result of drinking whiskey to excess, he became drunk and did not know what happened. He even did not know how he got home, etc.
Appellant’s chief complaint is that the court erred in declining to sustain his motion for an instruction to the jury to acquit him based on the ground tht the evidence conclusively shows that the offense of robbery was committed in Camp County about two miles from the county line of Titus County. With this contention, we agree.
We quote from the testimony of Howard Wallace, the injured party, as follows: “Well, he stuck a gun in my side and left it there. Well, he held it right there until we got to where we stopped and then he told me to turn the light on and I turned the light on and I saw the gun. That stop was over there where we came into the old Mt. Pleasant-Pittsburg highway. That is about two miles from the county line.” This convinces us that the robbery occurred in Camp County and not in Titus County, nor within four hundred yards of the Titus County line. Since this testimony was uncontroverted, the court should have given the requested charge or dismissed the prosecution.
All other complaints have been considered by us and found to be without merit.
For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded.
Opinion approved by the Court.