
    BEATY v. STATE.
    (No. 10124.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.
    Rehearing Granted Dec. 22, 1926.)
    1. Criminal law <&wkey;>5ll(6). — Testimony of accomplice held sufficiently corroborated by showing accused had clothing lost by burglary charged.
    In burglary prosecution for breaking into clothing store, testimony of accomplice held sufficiently corroborated, where other evidence showed accused had hat from store with storekeeper’s name cut out of band and had other articles from store at residence, and where sledge hammer claimed by accomplice to have been used in attempt to break safe was found in store.
    On Motion for Rehearing.
    2. Criminal'law &wkey;>l092(7) — Bill of exception may be. considered, though not filed in 90 days, where delay was without fault of accused (Code Cr. Proc. 1925, art. 760).
    Bill of exception, complaining of denial of continuance, may be considered, though not. filed within 90 days after notice of appeal, as required by Code Cr. Proc. 1925, art. 760, where delay in filing was without fault of accused or counsel.
    3.Criminal law <&wkey;595(2) — Accused held entitled to continuance because of absence of witnesses to prove alibi and explain possession of goods lost by burglary charged.
    In prosecution for burglarizing store, where state’s evidence, in addition to testimony of accomplice, rested solely on showing that accused had goods taken, therefrom, refusal to grant continuance to allow defendant to procure testimony of absent witnesses as to his whereabouts on night of burglary and as to purchase of goods taken from store held error.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    O. R. Beaty was conVicterl of burglary, and be appeals.
    Reversed and remanded.-
    G. H. Crane, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Appeal is from a conviction of burglary,, with punishment of 3 years in the penitentiary.

By bill of exception No. 1, appellant complains because his application for continuance was denied. The motion for new trial was overruled on the 24th day of November, at which time notice of appeal was given. The term of court expired on the 28th day of November. The court undertook to extend the time for filing bills of exception 90 days after adjournment. Under the provisions ol' the 1925 revision (C. C. P. art. 760), the court was without authority to extend the time •beyond 90 days from the date of notice of appeal. Under the former statute, when the time could be extended to 90 days from adjournment, it was held that a further extension was not authorized. Roberson v. State, 97 Tex. Cr. R. 92, 260 S. W. 578. In this case 90 days from notice of appeal expired on the 22d day of February. The bill complaining of the refusal of continuance, although approved by the trial judge on the 15th day of February, was not filed until the 25th day of the same month. We cannot review the question presented in this bill on account of the delay in filing. Bailey v. State, 104 Tex. Cr. R. 150, 282 S. W. 804; Johnson v. State, 104 Tex. Cr. R. 384, 283 S. W. 807.

The question presented in bill No. 2 is not briefed. However, we have examined it, and think it presents no error.

Bills 3 and 4 appear to have no place in the record. They were not approved by the court but were expressly refused, for the stated reason that no objection was made to the admission of the evidence attempted to be complained of in said bills.

All other bills present in various ways appellant's contention that there is not sufficient evidence to corroborate the accomplice witness Elkins. It was established by evidence independent of the accomplice witness that a burglary was committed on the night of the 17th of April of a store belonging to B. B. Babb at Lone Oas, in Hunt county, and that at the same time an unsuccessful effort had been made to break open tne safe in the store. . A sledge hammer was found in the store, having the name of the “Katy” Bail-road on it. Quite a quantity of merchandise was taken, consisting of hats, shoes, neckties, dress material and dresses and shirts. About 10 days or 2 weeks afterwards Babb found some of this merchandise in the detective department of the city of Dallas, and indenti-fied it. Appellant at that time was in possession of a hat and shirt which Babb indenti-fied. The hats taken from the store had Babb’s name on the sweatband. The hat found in appellant’s possession had a block cut out of the band at a place corresponding to the location of Babb’s name on the band. Babb also found in the detective department some shirt boxes with his cost mark on them and the shirts and dress material corresponded with those which he had missed.

Appellant’s brother Dewey rseaty and the witnéss Elkins rented an automobile from one Cooper the day of the burglary which car they took out of Cooper’s place about 8:30 or 9:00 o’clock at night. Cooper does not know what time the car came in, as he had gone off duty when it was returned that night, but later he received from Dewey Beaty two shirts, a hat, some neckties, and socks. These articles were turned over to the detective department at the city hall in Dallas, and were claimed by Babb 'as his property. Detectives also found at the residence of Dewey Beaty some dress goods, and also some four or five shirts and some neckties which were turned into the detective department and later delivered to Mr. Babb. As .a result of the investigation madé by the officers, Dewey Beaty, one Shorty Waller, John Elkins, and appellant were arrested ana placed in' jail in Hunt county. Waller and the two Beatys all had on hats corresponding with those which had been taken from Babb’s store and all having Babb’s name cut out of the sweatband. When arrested, Waller was wearing a pair of shoes which were identified by Babb as belonging to him.

Appellant did not testify, but introduced as a witness one Beisbeck, who testified that on one occasion he was in the café in Dallas where appellant worked and one evening saw appellant receive from his brother Dewey Beaty a package which contained some shirts, a hat, and neckties, and at the same time saw the exchange of a bill of some denomination between them. This seems to be an effort in a most general way to show that appellant received from his brother the goods afterwards found in appellant’s possession and identified by Mr. Babb. Appellant introduced some evidence tending to show that at the time of the burglary he was in the city of Dallas, but this evidence on the question of alibi is far from satisfactory. After Beisbeck had testified as heretofore indicated, he was recalled by the state, and testified that he was a patient in a hospital in Dallas, and that appellant endeavored to get him to testify that he (appellant) was with witness at the hospital on the night of the burglary; this witness declined to do.

Elkins makes out a complete case against appellant, and connects up the property found in appellant’s possession with that taken from Babb’s store on the night of the burglary. Elkins’ story is that he and Dewey Beaty rented the automobile in which the trip from Dallas to Lone Oak was made, and that, after he and Dewey Beaty left the garage with the car, they picked up Waller and- appellant; that they got a sledge hammer out of the section house on the railroad for the purpose of knocking the knob off the safe; that, after they pried the doors open, all four of them went in and made an unsuccessful effort to open the safe; that quite a quantity of goods was taken out of the store, including hats, shoes, shirts, and other articles enumerated by Mr. Babb, and that this was carried back to Dallas and left in a certain garage at the direction of appellant and his brother; that later these goods were taken to Dewey Beaty’s house and divided into four parcels, one of which was for appellant; that appellant was not present at the time this division was made; that witness did not see appellant get his parcel of goods, nor see them delivered to him, but later did see him wearing some of the articles; and that át the time appellant was arrested he had on one of the hats which came out of the burglarized store.

We are of opinion the accomplice witness was sufficiently corroborated.

The judgment is affirmed.'

On Motion for Behearing.

From the showing made by appellant in connection with his motion for rehearing, we are convinced that bill of exception No. 1, complaining of the court’s refusal to grant his continuance, should be considered. The delay in filing it appears to have been without fault on the part of counsel or appellant and without negligence on the part of either of them.

Continuance was sought on account of the absence of three witnesses—Bender, WiL liams, and Mrs. W. D. Beaty. It is doubtful if the application as it relates to Williams shows diligence. It seems to be sufficient in this regard as to the other witnesses.

The case was made out against appellant chiefly through the witness Elkins, a confessed accomplice. The only other evidence which tended to connect appellant with the burglary in Hunt county was the fact that several days after it was committed he was found in the city of Dallas in possession of a hat and some shirts which were identified as being part of the goods stolen from the burglarized house. Upon the trial appellant undertook to establish an alibi, claiming he was in Dallas on the night of the burglary, and also attempted to show that he had purchased the articles of clothing found in his possession .from his brother W. D. (Dewey) Beaty, who, according to Elkins, had also participated in the burglary. The' absent testimony was unquestionably material upon both issues.

If the importance of the testimony was not perceived when the application was presented, it became clearly apparent in view of the facts developed upon the trial. The court was in error in not granting appellant a new trial in order that he might obtain the absent testimony.

The motion for rehearing is^ granted, the judgment of affirmance is set aside, and the judgment of the trial court is reversed, and the cause remanded. 
      (g^>Por other cases seo same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     