Williams v. State , 34 Tex. Crim. 327 ( 1895 )

Appellant prosecutes this appeal from a conviction for burglary alleged to have been committed in the day-time. He sought a continuance for the testimony of Henry Black, by whom he expected to prove the burglarized house "had an outside door, which was broken, and always stood open; that there was no inside shutter to the dugout or basement at all; that there were only open doorways; that it was not necessary to break said house, or open any door at all, in order to enter said dugout building." If it be conceded that this testimony is material, and probably true, as to breaking into the lower or basement story, yet the court correctly refused the continuance, because it was not possible, under the statement of facts testified, for him to enter the second story of the house from the basement story or dugout; and it was from the second story that a considerable amount of the property was stolen. Both stories were entered, and goods taken from both; and the absent testimony would not have affected the case as to the burglary of the second story, as we understand this record. The same witness (Black) filed an affidavit, attached to the motion for new trial, in which he states, that he visited the house in question three days after the burglary, and there were then no door shutters to the basement story. This is set out as newly discovered testimony. Whether it is or not newly discovered evidence, we deem it unnecessary to discuss, because, if the entry was not made by breaking as to the lower story, it certainly was as to the upper story, as above stated. While under arrest, appellant was informed by the owner of the house alleged to have been burglarized that he intended to secure a search warrant, and search the premises of his (appellant's) mother-in-law for the stolen goods. In reply, appellant stated that if he would not do so he would send his brother-in-law, Black, for the goods, and immediately did so. Black found the property secreted under a hay rick, and returned same to the owner. They were found on the premises of his mother-in-law, where appellant stated he had secreted them. Appellant was duly cautioned before these matters occurred. Whether freely and voluntarily made or not, is not here necessary to discuss. The property was found as indicated by appellant, and at the place stated by him to Black. Its whereabouts was not known until he gave this information, which led to its recovery, and but for this testimony it is barely possible this conviction would or could have been obtained. The testimony was clearly admissible. Willson's Crim. Stats., sec. 2473.

The judgment is affirmed.

Affirmed.

HURT, Presiding Judge, absent.