
    MASSEY v. STATE.
    (No. 7560.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.)
    Criminal law <&wkey;>586 — Refusal to permit with.drawal of announcement of ready held not an abuse of discretion.
    In a prosecution for burglary, in which no defense was presented, and an issue on an affidavit presented before the trial that the accused was less than 17 years of age was decided against the accused, overruling a motion to permit the accused’s attorney to withdraw his announcement of ready in order to obtain as a witness an uncle of the accused, whose testimony that the accused was less than 17 years of age would have been in conflict with an affidavit of the accused’s mother, in view of the fact that the motion for a new trial did not contain an affidavit of the absent witness, nor any reason for the absence of such affidavit, was not an abuse of the discretion of the trial court.
    Appeal from District Court, Henderson County; W_. R. Bishop, Judge.
    Mack Massey was convicted of burglary, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of 2 years.

According to the state’s testimony, appellant broke into the house of Neal Allen, and took from his cash drawer the sum of $10. Upon his arrest, appellant admitted to the sheriff that he had gotten the money, and told him where it could be found. Following the directions given by the appellant the sheriff obtained the money. There was other evidence that the appellant was' seen about the premises a short time before the offense was committed, and also immediately after-wards, going in the direction of the point at which the money was found.

Preliminary to the trial an affidavit was presented averring that the appellant was under the age of 17 years. The trial judge heard evidence upon this issue, and decided it against the appellant. The evidence before him is not revealed by the record, except it is shown in the bill of exceptions that appellant’s mother had, in an affidavit made to the school census trustee, given the date of his (appellant’s) birth at a time which would show him to be between 16 and 17 years of age at the time of the trial.

The privilege of withdrawing his announcement of ready for trial was sought to secure the testimony of Henry Massey, Jr., who resided in a nearby town. According to the averments in the motion, an application had been made for the issuance of a subpoena for Henry Massey, Jr., who lived in Kerens; In obedience to the subpoena Henry Massey appeared, but he was not the witness desired. Henry Massey, Jr., was an uncle of the appellant, and the proof expected -was that he knew the appellant’s age to be under 17 years. Unless we were made aware of all the facts that were before the trial judge at the time he passed upon appellant’s application 'to be tried as a juvenile, we would not be able to determine that in overruling the motion, the court abused its discretion. It is not made to appear that the attendance of the absent witness might not have been secured during the trial. From the bill of exceptions it is not shown that any effort was made to secure the attendance of the witness. The probable truth of the absent testimony or the probability that the witness would give it was primarily a matter to be determined by the trial judge. In view of what is shown in the bill, namely, that the testimony would be in conflict with the affidavit of the mother of the appellant, we are not prepared to’ say that the trial judge abused his discretion in overruling the motion. Particularly is this true inasmuch as the motion for new trial is supported by no affidavit of the absent witness, who was an uncle of the appellant; nor is there given in the bill any reason for the absence of such affidavit. It may be added that, ds shown by’ the statement of facts, appellant presented no defense; nor does it in any manner appear that he has a defense. If at this time his case was reversed, he, having reached the age of 17 years, could not be tried as a juvenile.

The judgment is affirmed.  