
    HAYDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.)
    1. Burglary (§ 41) — Evidence — Sufficiency.
    Evidence held, to support a conviction of burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103; Dec. Dig. § 41.]
    2. Ceiminal Law (§ 916) — New Trial-Grounds.
    Where the evidence was clearly sufficient to sustain a conviction of a felony, accused was not entitled to a new trial on the ground that he was not represented by an attorney, in the absence of anything to show that he was fraudulently imposed on, preventing the employment of an attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2159, 2160; Dec. Dig. § 916.]
    Appeal from District Court, Titus County; P. A. Turner, Judge.
    Pete Hayden was convicted of burglary, and he appeals.
    Affirmed.
    Rolston & Ward, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDEB.GAST, J.

The appellant was indicted for burglary with intent to steal, charged to have been committed on or about the 16th day of February, 1909. He was convicted, and his penalty assessed at two years’ term in the penitentiary. The court gave a full and apt charge on the subject, including a charge on circumstantial evidence. No complaint is made of the charge. v The evidence clearly shows that on the morning of February 16, 1909, John Wilkinson, the witness whose house was burglarized, closed up his house where he and his family lived — no one left therein — and started to Mt. Pleasant, about three-fourths of a mile distant, to mail some letters. As he was leaving Ms place, just outside of his yard, he met the appellant, who inquired for one of the witness’ boys. He was told that the boy was not at home, but was off assisting his mother in washing. The witness knew the appellant, who had been a visitor to his family from time to time. The witness continued toward Mt. Pleasant, but saw the appellant enter his yard, going towards his house. He did not see him enter the house. Witness was gone from his house from 20 to 30 minutes. On returning, when near his house, he saw the appellant leaving his back yard, and he went across a field. He did not stop appellant, or holloa at him, because at that time he had not suspected anything wrong. Just before leaving home the witness had placed his gold watch and gold ring in his trunk, and locked his trunk. After reaching his house, and sitting down and reading awhile, he concluded he would get his watch and put it on. When he went to the trunk, he found the trunk had been broken open, and his watch and ring both gone. He suspected the appellant, and began a search for his watch and ring, gome two or three days later he located his watch in the hands of another party, several miles off, to whom the appellant, the witness says,had pawned it for $ 1.50. He identified the watch as his beyond question.

Soon after the burglary, perhaps the same day, the appellant gave the ring to a negro girl about 17 years of age, who lived some few miles from the house burglarized. The ring was clearly identified, showing that it had the initials “J. W.” inside of it, which the owner said he himself had put there with his pocket knife. At the same time the appellant handed to the mother of the girl the watch, requesting her at first to keep it for him. A day or two later he wanted her to sell it for him, which she declined to do. He was not wearing the watch or ring either when he reached the place where the girl and her mother lived, to whom he gave the ring and handed the watch. He stayed at this place two or three days. At the time he handed the watch to the mother and gave the ring to the girl, he claimed that both of them had been sent to him by some kinsman in Louisiana. No one else was shown to Rave been witRin or about tbe Rouse from tRe time tbe witness Wilkinson left it, when the defendant was going towards it, till Re returned, some 20 or 30 minutes later, when the defendant was leaving Ris back yard and went across a field.

TRe appellant, it appears, Rad no attorney to represent Rim in the trial of the case. After Ris conviction Re employed attorneys, who filed a motion for new trial for Rim, which was sworn to by the appellant. The substance of the motion is that the appellant was under 16 years of age; that he did not know that his age was material until after his conviction; that he was misled in not employing attorneys by the sheriff, for whom Re worked, who informed him that there was no danger of his being sent to the penitentiary; that some three weeks before the term of the court at which he was convicted, his father, hearing of his indictment, came to see him for the purpose of making an investigation of the charge against him and employing attorneys for him, but that his father was informed by appellant of the information the sheriff had given him (appellant) that he did not need any attorneys and not to employ any, because he did not know that the state was going to press the charges against him; that he also had an aunt, who, in August, was going to make'some arrangement for attorneys to represent him, but she was informed by the sheriff that there was no danger of his being sent to the penitentiary, and that he did not need a lawyer, and she. did not employ one; that because of all of this, and his information from the sheriff, he had no witnesses subpoenaed; that if he had witnesses he could have proved that the watch which state’s witnesses identified was not the watch that had been stolen, but was the property of a negro woman 'living in Mt. Pleasant, and that the evidence tending to connect him with breaking and entering the burglarized house was insufficient to connect him therewith, and that the watch he had was not the watch of the prosecuting witness Wilkinson, whose house was burglarized. To his motion for new trial is attached the affidavit of his father, who swears that he knows the age of the appellant; that he was born on January 8, 1894, and would be 16 years of age on January 8, 1910; that he did not know his son was in trouble in the court until two or three weeks before; that he then came to Mt. Pleasant, where the appellant had been working, saw him (appellant), asked him about it, and that he was out of jail and working for Mr. Sanders, the sheriff, and that he was not in trouble; that upon his return home he saw an aunt of the appellant, by whom he was informed that said Sanders had told her that there was not anything against defendant, and that he was not in any danger of going to the penitentiary; that he did not know anything further of the case until after he was informed that the defendant had been convicted, when he came to Mt. Pleasant to see about the case as soon as he could.

The state contested the motion for new trial on the grounds that the matters therein alleged were not true. To this contesting pleading was attached the affidavit of the constable of precinct No. 1, in Titus county, who swore that he knew the defendant, and had known him for some time, and from his personal appearance he believed he was more than 16 years of age, and was at least 17 or 18 years of age. The court, in the judgment overruling the motion for new trial, stated: “And the court, having heard said motion and the evidence thereon submitted, is of the opinion that the same should be overruled” —and dfd overrule it. >

We deem it unnecessary to discuss separately the various grounds set up in the motion for new trial. The evidence is clearly sufficient to sustain the conviction. None of the grounds of the motion for new trial, under the circumstances, are sufficient to entitle appellant to a new trial. This case does not come within any of the cases where the defendant is shown to have been so fraudulently imposed on as to entitle him to a reversal. There is nothing in the record sufficient to justify us to hold that the lower court erred in overruling the motion for new trial on any of the grounds thereof.

The judgment will therefore be affirmed.  