
    GILDER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1910.
    On Motion for Rehearing, Jan. 18, 1911.)
    1. Criminal Law (§ 1099) — Statement of Facts — Approval by Trial Judge.
    A statement of facts not approved by the trial judge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 1097) — Denial of Continuance-Review — Statement op Facts.
    Refusal to grant a continuance cannot be reviewed in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2926; Dec. Dig. § 1097.]
    3. Burglary (§ 18) — Requisites — Indictment.
    An indictment for burglary with intent to steal need not allege some value of the property intended to be stolen.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 31, 32, 36; Dec. Dig. § 18.]
    4. Criminal Law (§ 1097) — Denial of New Trial — Review—Statement op Facts.
    Denial of new trial on the ground of error in refusing an application for a continuance will not be reviewed in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2947; Dec. Dig. § 1097.]
    On Rehearing.
    5. Criminal Law (§ 1110) — Record—Amendments.
    Where the record on appeal has been corrected so as to show that the failure to insert in the transcript the approval of the judge to the statement of facts was an .oversight, and that the statement of facts was approved, the case will be considered on the merits.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1110.]
    6. Criminal Law (§ 595) — Continuance — Absence op Witnesses.
    "Where, on a trial for burglary, the state relied solely on the possession by accused of stolen property after the burglary, the refusal to grant a continuance on the ground of the absence of witnesses to prove' an alibi and the confession of a third person who could have committed the crime was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. .Dig. §§ 1323-1327; Dec. Dig. § 595.]
    
      7. CRIMINAL Law (§ 359) — Evidence — Ad - MISSIBILITV.
    One on trial for crime may prove the confession of another in a position to have committed the crime.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 789, 799; Dec. Dig. § 359.*]
    Appeal from District Court, Jasper County; H. C. Howell, Special Judge.
    Mitch Gilder was convicted of burglary, and he appeals.
    Reversed and remanded.
    Smith & Blackshear, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at three years’ confinement in the penitentiary.

There is what purports to be a statement of facts sent up with the record, but it is not approved by the trial judge. We therefore cannot consider it.

1. Without the statement of facts we cannot revise the court’s action refusing to grant a continuance as shown by bill of exceptions No. 1.

2. Motion in arrest of judgment was made on the ground that the indictment fails to allege that the property intended to be stolen had any value. The indictment charges burglary of a commissary owned by the Al-dridge Lumber Company with the intent to fraudulently take from said house personal property belonging to said Aldridge Lumber Company without the consent of Weaver, who was alleged to be in possession, and with the intent to deprive the said Aldridge Lumber Company of the value thereof, etc. The point made by appellant is that the indictment should allege some value of the property intended to be stolen. This is not necessary. With reference to burglary, a forcible entry of a house for the purpose of committing theft, the value of the property is immaterial, and, if a party breaks a house with intent to commit theft, it is unnecessary to allege the value of such property.

3. The only ground of the motion for new trial is that the court erred in failing to grant the application for continuance. As before stated, the evidence is not before us and we are unable to review this question. The refusal of a continuance will not be revised in the absence of the evidence adduced upon the trial.

Finding no reversible error in the record, the judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed without reference to the statement of facts, because the statement of facts was not approved by the trial judge. •The record has been corrected showing that the failure to insert in the transcript the approval of the judge was an oversight and the fact that the statement of facts in fact was approved. The case will now be considered on its merits.

Appellant filed his first application for a continuance on account of the absence of several witnesses by whom he expected to prove, first, an alibi; and, second, the confession of another party who was placed in such position that he could and might have committed the crime with which appellant was charged and for which he was convicted. The indictment charged a burglary with intent to commit theft The evidence shows that the house broken into was a store, and some guns were taken from it. Appellant was seen in possession of one or two guns which the state sought to show came from the burglarized store, and was offering to trade or sell them. When asked about the guns, he stated that he had taken them in pawn from some party down at what the witnesses term the “Levee Camp.” He was exhibiting them around rather publicly. Quite a number of the witnesses saw him with the guns, and in every instance when questioned about it he made the statement above mentioned. By the absent witness Neugent he proposed to establish the fact that he was working under Neugent at a camp over near some ferry on the river. By another one of the absent witnesses he alleges he could have established the fact that the witness Smith admitted taking the guns. In other words, he proposed to prove the confession of Smith. His alibi and his statements as to how he came in possession of the guns and the confession of Smith could be entirely in harmony with every other charge, which would afford, if the jury believed it, fully sufficient reasons why they should not return a verdict against him, when the alleged owner discovered his guns, at least one of them, was in the possession of Smith. Smith testified, however, that the defendant brought them there, and that he bought the gun from him; that, when he brought the gun, he was questioned about it, and he stated he got it at the levee camp in pawn for money. The son of Smith testified also for the state in substance as did his father, but some of the witnesses further testified that this boy denied that the guns were at his father’s house' when they first approached him; that is, when the officers were searching for the guns, this boy denied any guns at all being at his father’s house. The officers, however, found' two guns — one a double-barrel shotgun — at the residence of Smith, the boy owning one of them and the father the other. As before stated, appellant was convicted of burglary. In order to connect the defendant with the burglary, the state offered evidence of the fact that he was in possession of the gun not a great while after the alleged burglary. Independent of this fact, the state would have no case as to the burglary. No one saw the house burglarized, and the state relied upon possession of the property taken from the house to connect appellant with the breaking. If appellant was not present at the breaking, he would not be guilty of burglary. If he came into possession of the gun or guns subsequently from some other party who took them, he would not be guilty of the burglary, unless he was present, of course, at the breaking. If Smith took the guns and not appellant, he would not be guilty of the burglary. At least these facts would account for his possession of the property and strongly tend, if not in fact show that he did not commit the burglary. The confession was a fact appellant could introduce viewed in the light of the opportunity of Smith to do the thing and Smith’s possession of the property. This has been the well-settled rule in Texas since the opinion in Dubose v. State, 10 Tex. App. 230. We have had several cases of this character of recent date.

In view of another trial, we suggest that the court submit the defensive matters to the jury by pertinent charges. For the rea'sons indicated, we are of opinion that the rehearing should be granted, the affirmance set aside, and the judgment reversed, and the cause remanded.  