
    HART v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.
    On Motion for Rehearing, March 8, 1911.)
    1.Judges (§ 19) — Disqualification—Pleas —Evidence.
    A verified plea in limine alleging that a judge of a different district is threatening to try the case, though the regular judge is not disqualified, and though the judge from the other district has not been appointed by the Governor to hold court, and though the lawyers practicing at the bar have not elected him to hold court, and though accused has not agreed to try the case before him, does not prove itself; but there must be evidence to sustain it, especially where the record contradicts the plea.
    [Ed. Note. — For other cases, see Judges, Dec. Dig. § 19.]
    2. Judges (§ 29) — Qualifications—Judges of Other Districts.
    Under Rev. St. 1895, art. 1108, providing that any judge of the district court may hold court for any other district judge, the regular presiding judge of a district may vacate the bench, and the judge of another district may hold court for him.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 140-152; Dec. Dig. § 29.]
    3. Criminal Law (§ 595) — Continuance-Grounds— Sufficiency.
    Where the evidence showed accused’s guilt, the refusal to grant a continuance on the ground of the absence of his wife, who would testify to an alibi, was not erroneous.
    [Ed. 'Note. — For other cases, see Criminal Law, Dec. Dig. § 595.]
    4. Criminal Law (§ 508)— Evidence — Admissibility.
    The testimony of a codefendant, testifying against. defendant on trial, is properly received, and it is not error to refuse to strike it out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 50S.]
    5. Criminal Law (§ 1090) — Rulings on Testimony — Bill of Exceptions.
    Where there is no bill of exceptions reserved to testimony complained of in the motion for new trial, the admissibility of the testimony is not reviewable on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ■ § 2816; Dec. Dig. § 1090.]
    On Motion for Rehearing.
    6. Criminal Law (§ 595) — Continuance-Grounds.
    Where, on a trial for burglary, the evidence clearly connected accused with the offense, and showed his guilt and his effort to secure witnesses to testify in his favor, a continuance, on the ground of the absence of a witness who would testify to codefendant’s threat to implicate accused in a penitentiary offense, was properly refused, because the testimony of the absent witness was immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    Appeal from District Court, Archer County; Jo. A. P. Dickson, Judge.
    Mont Hart was convicted of burglary, and he appeals.
    Affirmed.
    W. E. Forgy and Taylor, Jones & Humphrey, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rop’r Indexes
    
   HARPER, J.

The appellant was sentenced to a term of two years in the penitentiary from Archer county, charged with burglary.

The appellant complains in four assignments of error of the action of the trial court, the first of which is that the court erred in overruling defendant’s plea in lim-ine — the plea alleging that Hon. A. H. Car-rigan is the judge of the district in which Archer county is situate, and that he is not disqualified from trying the cause;- that Hon. Jo. A. P. Dickson is judge of a different district, and he is threatening to try the cause on invitation of the regular presiding judge. The plea alleges that 1-Ion. Jo. A. P. Dickson was not appointed hy the Governor to hold court in Archer county, that he was not elected hy the lawyers practicing at the har to hold court in said county, and that appellant had not agreed to try said cause before said judge. The plea was sworn to by appellant, but no proof was introduced as to the truth of the allegations contained in the plea. A plea of this kind does not prove itself, but takes evidence to sustain it, and especially would this be true when the record contradicts the plea; the order reciting: “Monday, April 18, 1910. This day the honorable district court of Archer county was opened pursuant to adjournment, and Hon. A. H. Oarrigan, district judge of the 30th judicial district, having by mutual arrangement and for reasons deemed expedient to them, exchanged districts for the time being with Hon. Jo. A. P. Dickson, district judge of the 50th district, the said 1-Ion. Jo. A. P. Dickson was present and presiding.” But even if Hon. Jo. A. P. Dickson had been holding merely upon the invitation of the regular presiding judge, who on account of sickness, for business or any other reasons, preferred to vacate the bench, if the adjoining judge was willing to hold court for him, our statutes authorized him to do so. Article 1108 of the Revised Statutes of 1895 reads: “Any judge of the district court may hold court for or with any other district judge.” There was no error in overruling the plea.

The appellant’s next contention is that the court erred in overruling his apifiication for continuance. Waiving the question of diligence, we do not think the testimony desired from the witnesses Joe Hash and E. B. Weeks was material. All that it is claimed it is expected to prove by the witness Hash is that, prior to the burglary, Geo. Parrish, a witness for the state, had said he .had it in for the defendant, and that he intended to implicate him in some trouble that would send him to the penitentiary. If the defendant, in connection with Geo. Parrish, did get implicated in a burglary, even if it was at the instance of Parrish, he would still be amenable to the law. By the witness E. B. Weeks it is stated that defendant expected to prove that he had caught the witness Parrish, in connection with another, near the store in which he was clerking, about 10 o’clock at night, and he asked them if they had not been going in the store and getting goods, and they answered no, but that appellant, Mont Hart, was stealing goods, and they were laying for him, and would turn him in if they caught him. Admit that all this is true, and that the witness Parrish was very bitter in his feelings, and anxious to do defendant all the harm he could, and send him to the penitentiary, if possible, in what way could it 'be evidence in this case? Eliminate the testimony of the witness Parrish, and what does the record show? Appellant went to a livery stable late in the night, and hired a buggy and horse. He and the witness Parrish were seen driving away from the stable in the buggy by the witness Oscar Johnson late at night, after it had rained some. The store was broken into that night. A buggy had been driven to the store, making a plain track after it had rained. Flour and bacon were stolen from the store. Early the next morning the sheriff and a number of citizens trailed the buggy tracks, and they led, first, to the house of Parrish, where a portion of the stolen goods were found. It then led to the rear of appellant’s house, and in his house more of the stolen goods were found. Ip the record there is no explanation of his possession of these goods. The buggy was then trailed from appellant’s residence to the livery stable. Upon inquiry it was learned that appellant had hired the buggy between II and 12 at night, and appellant had returned the -buggy about daylight next morning, the night df the burglary, and had paid for the use of the buggy. In the buggy used that night was found grease signs and salt, and on the buggy springs a “right smart grease.” The horse hired by defendant had a defect in one shoe. This was detected in the tracks of the horse drawing the buggy. In the absence of any explanation of appellant’s possession of the stolen property, this is direct and positive testimony of defendant’s guilt, outside of the testimony of the witness Parrish, and it would be immaterial what Parrish’s state of feelings -were toward appellant, or what statements he had made prior to the burglary.

The other witness named in the application was the wife of defendant, by whom he stated he expected to prove that he was at home from 11 o’clock that night until 4 next morning. The witness was in the town where the case was tried during the trial. It is true that in the application it is stated she was sick, and had been under the care of a physician for two or three days. Ho certificate or affidavit of any physician is attached to the application. Ho subpoena was ever issued for this witness, and no diligence shown. By the witnesses Oscar Johnson, Henry Hodges, and others appellant is shown not to have been at home, if -their testimony is true, and in addition thereto it is shown by the witness Dickson and others, after his arrest, that appellant had come to them and asked them if they could not say that on Thursday night before the burglary they had seen the things found in his house in their place of business. They answered they could not. In the light of all the testimony, there was no error in overruling the application for a continuance.

There was no error in refusing to strike out the testimony of the witness Parrish.

While there is complaint in the motion for a new trial to the admissibility of the testimony of the witnesses M. Lea, Ed. Goodwin, Charlie Martin, O. D. Williams, and N. N. Ewing, there are no bills of exception in the record reserved to this testimony, and • in this condition we cannot pass on the question.

The judgment is affirmed.

On Motion for Rehearing.

In this case the judgment of the district court was affirmed at a former day of this term. Appellant has filed a motion for a rehearing, in which he complains that the court, in holding that the lower court did not err in overruling his application for a continuance, did not set out all that he stated he expected to prove by the witness Joe Nash, and that the court must not have considered the remainder. ■

Defendant stated he expected to prove by the witness Nash “that his codefendant, Goe. Parrish, told him the said Joe Nash, in Archer City, Texas, some time during the month of March, 1910, in the pool hall, in Archer City, Texas, that he had it in for the defendant, Mont Hart, and that he intended to implicate him in some trouble that would send him to the penitentiary, and that when the said Parrish made this statement to the witness Joe Nash that the witness asked the said Parrish how he intended to get this defendant into trouble, and that the said Parrish told him that he could tell that this defendant was guilty of breaking into storehouses and stealing goods, and that he could get a party to help him leave some goods at the house of this defendant, and that when they were- found the proof would be sufficient to convict this defendant, and that the people here in the town of Archer City would be ready and believe that the defendant had broken into some store and had stolen the goods that were found in his possession; that he can and will prove by the witness Joe Nash that he was on very intimate terms with the defendant Geo. Parrish at the time the said Parrish made this statement to him, and that the said Parrish at said time asked this said witness not to tell what he had said to him, nor to give away his scheme to catch this defendant.”

Had there been any effort made on the trial of this cause to show that defendant had been imposed on, and that the stolen goods had been placed in his house without his knowledge, this testimony might have become material. But in the record there is no explanation of the defendant’s possession of the stolen goods. On the other hand, the record shows that defendant approached Midford Dickson and others, after his arrest, and tried to prevail on them to testify that the goods found at his house belonged to him and were in his possession prior to the night of the burglary. The testimony sought from this absent witness, in the condition the record is brought to us, could not have been material, and, taken in connection with the evidence on the trial of the cause, it is apparent the testimony would not be true. Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; Carver v. State, 36 Tex. Cr. R. 552, 38 S. W. 183; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44.

Admit that the witness would testify that Parrish had made such statement to him: The record shows that the store was burglarized at night, that night defendant hired a buggy from a livery stable, defendant was seen to drive the buggy out of the stable, the buggy tracks were traced to the store burglarized, and from the store to defendant’s residence, where a portion of the stolen goods were found. 1-Ie carries the buggy back to the stable just before daylight. There are signs on the buggy showing the stolen goods had been hauled in it. Defendant tries to get witnesses to testify that he was in possession of the goods (found at his house) before the night of the burglary, and, failing in this, no explanation of his possession is found in the record. Upon a trial, there must be something shown whereby the testimony of an absent witness would be material. In this record there is nothing rendering this testimony material.

The motion for rehearing is overruled.  