
    POLK v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 19, 1910.
    Rehearing Denied Dec. 7, 1910.)
    1. Ceiminai, Law (§§ 596, 598)1— Continuance — Absence of Witnesses — Diligence.
    An application for a continuance on the ground of absence of witnesses was properly denied where their testimony was merely cumulative, and where the term of court commenced on September 13th and the cause was not called for trial until October 1st, and where, though the witnesses did not appear during the two weeks, no process was applied for to secure their attendance.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1328-1330, 1335-1341; Dec. Dig. §§ 596, 598,]■
    2. Criminal Law (§ 917) — Ruling on Application for Continuance.
    A motion for new trial for refusal to grant a continuance on the ground of the absence of witnesses was properly denied, where their testimony was merely cumulative, and where nearly four weeks elapsed between the time of conviction and the overruling of the motion, without any effort having been made to secure either the presence of the witnesses or their affidavits in support of the motion.
    [Ed. Note. — Ebr other cases, see Criminal Law, Cent. Dig. § 2162; Dec. Dig. § 917.]
    3. Burglary (§ 3) — Elements of Offense.
    The essential ingredient of burglary is the felonious entry, and the intent may be to commit any felony or the crime of theft.
    [Ed. Note.’ — Eor other cases, see Burglary, Cent. Dig. §§ 24^-27; Dec. Dig. § 3.
    
    Eor other definitions, see Words and Phrases, vol. 1, pp. 9081-911; vol. 8, p. 7593.]
    4. Burglary (§ 28) — Prosecution — Indictment-Issues, Proof, and Variance.
    There is no fatal variance between an indictment for burglary alleging that accused entered the house of prosecutor with intent to steal personal property belonging to him and the evidence that accused stole property belonging to a member of the family of prosecutor.
    [Ed. Note. — Eor other cases, see Burglary, Dec. Dig. § 28.]
    
      5. Criminax Law (§ 958) — New Trial — Newly Discovered Evidence.
    A new trial for newly discovered evidence, supported by an. affidavit of accused averring that he had been informed by a former sheriff after his conviction that he could prove by a third person that accused did not alight from a train at a station as proved by the state, but not supported by the affidavit of the former sheriff or by his testimony on the hearing of the motion because of his failure to remember the particulars of the conversation had with the third person, was properly denied.
    [Ed. Note. — For other cases, see Criminal I/aw, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.1
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Garfield Polk was convicted of burglary, and he appeals.
    Affirmed.
    Y. E. Middlebrook, 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
    
    
      
       For otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

On the 19th day of March, 1908, an indictment was returned into the district court of Nacogdoches county charging appellant with the burglary of a private residence of Mon Hill. At a trial had in said court on October 1st of last year appellant was found guilty, and his punishment assessed at confinement in the penitentiary for a period of five years.

1. When the case was called for trial, appellant filed his third application for continuance, based on the absence of Kate Benton and John Bryant. It may be conceded that the testimony of each of these witnesses was material. In refusing the application the court states in his explanation attached to the bill that such application on its face shows a want of diligence, in this: that the then term of court convened on .September 13th, and the case was not called for trial until October 1st, and that the witnesses had not appeared during these two weeks which had elapsed and no process had been applied for to secure their attendance; further, that the evidence is merely cumulative, and, again, that nearly four weeks had elapsed between the time of conviction and the overruling of the motion for new trial, and no effort had been made to secure "either the presence of the witnesses or their affidavits in support of the motion for new trial. Under the explanation of the learned trial court, it does not admit of question that his action was not only authorized, but proper, in overruling the application for continuance and the motion for new trial based upon his action in respect thereto.

2. In motion for new trial, reference is made to bills of exception Nos. 2, 3, 4, 5, and 6, but an inspection of the record discloses that no such bills are contained in it. There is in the statement of facts some exceptions, taken in a general way, but these are not sufficiently definite to demand review.

3. Again, it is urged that there is a variance between the allegation in the indictment and the proof. The indictment alleges that appellant entered the house in question with intent to commit the crime of theft, and with intent to steal certain personal property belonging to Mon Hill. The evidence shows that the only property that was in fact missed was a trunk belonging to -Hill’s daughter. We do not think the fact that, where one enters a house belonging to the head of the family, the fact that the only property which is removed from the house may belong to some other member of the family will constitute a variance. The crime charged is not theft, but burglary. The essential and indispensable ingredients of the offense of burglary is the felonious entry, and the intent may be to commit any felony, or the crime of theft, and the mere fact that the property taken at night may happen to belong to some one else than the owner of the house and the head of the family will not entitle such burglar to an acquittal on the ground of variance. Kubacak v. State, 127 S. W. 836.

4.Again, a new trial was sought on the ground of certain newly discovered testimony. This motion is supported by the affidavit of appellant, who states: That he had been informed by George W. Blackburn, ex-sheriff of Nacogdoches county, on 13th day of October, and after conviction, that he could prove by George Jones, who resides in and near Timpson, Shelby county, that he, Jones, got off the train at Caro, but that appellant did not get off - the train at that place. It should here be stated that appellant claimed that he had gotten off the train at Nacogdoches on the evening of the day of the burglary; whereas, it was claimed by the state and testified to by one witness that on this evening he got off the train at Caro some few miles of the scene of the burglary. That this testimony was unknown to him, but that, as soon as the witness Dallas Collier testified that he, defendant, got off the train at Oaro, his counsel had the witness George Jones called, believing that he was in the city of Nacogdoches, but was informed that he was in the city of San Antonio, and that he could not be reached in time to testify in the case. The application for new trial touching this matter contains this statement: “Defendant avers that he was informed of these facts by Geo. W. Blackburn, ex-sheriff of this county, on the 13th day of October, 1909; that he believes the information to be true; that he believes that the said testimony can be procured on another trial if a new trial be awarded him. The defendant further states that the reason that the affidavit of the informant is not attached hereto is that he is unable to secure the same from George W. Blackburn, as the informant states that he does not remember what the particular conversation was, but that the said Geo. Jones, or Geo. Speedy as lie is sometimes known, stated while he was in jail that the defendant did not get off the train at Oaro, Tex., but that he,- George Jones, did; that the informant only remembers that something of the above was the conversation.” It will be noticed that appellant’s version of the statement to him by Blackburn was of a vague character, that according to his statement the memory of Mr. Blackburn was quite vague and indefinite as to what Jones had said to him, but that ‘‘he only remembers that something of the above was the conversation.” If a fuller statement from Mr. Blackburn had been desired, it was easily possible on hearing the motion to have subpoenaed him before the court, had him testify on the hearing, and his testimony could have been incorporated in the record so we might intelligently have passed on the matter. As presented, we do not think the court below was required to grant a new trial, and it seems evident to us that we would be wholly without warrant in reversing the judgment of conviction for his failure so to do.

5. There are no other questions raised in the record that require attention.

Finding no error in the proceedings of the court below, it is ordered that the judgment be affirmed.  