
    SPICER v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1. Criminal Daw (§ 595) — Continuance— Grounds — Absent Testimony — Materiality.
    In a prosecution for burglarizing- a barn and stealing oats therefrom, the absence of a witness who would testify merely that oats were also stolen from him on the same night without identifying as his the oats which defendant was accused of stealing was not ground for continuance; such testimony presenting no defense, particularly where the complaining witness positively identified the stolen oats as being his.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    2. Criminal Daw (§ 595) — Continuance-Absent Testimony — Materiality.
    In the prosecution of a person for -burglarizing the barn of his father with whom he did not live, accompanied by the theft of oats therefrom, the absence of a witness who would testify that defendant’s father “never told defendant he did not have permission to come on' his premises” was not ground for a continuance; such fact not only being one to which a witness could not testify positively, and this testimony being, therefore, inadequate to present the defense that the oats were taken by permission, but permission to go on the premises, if proven, being no authorization to break into the bam in the nighttime and steal oats.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1311, 1323-1327; Dee. Dig. § 595.]
    
      3. Gbiminal Daw (§ 897) — Service of Indictment — Time of Trial.
    Under Code Or. Proe. 1895, art. 546, providing that a defendant shall be entitled_ to two days after service of a copy of the indictment, unless the right “to such delay be waived,” it was not error to try defendant on Monday after service of the indictment on him on Saturday, where the trial was set for Monday at his request. c
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2116, 2117; Dee. Dig. § 897]
    4. Criminal Law (§ 539) — Evidence—Prior Testimony.
    Statements made by defendant in his testimony in the preliminary hearing of another charged with the same burglary were properly admitted in evidence, where at the time of making such statements defendant was not under arrest or charged with the offense.
    [Ed. Note. — For other cases,, see Criminal Law, Dee. Dig. § 539.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Sam Spicer was convicted of burglary, and he appeals.
    Affirmed.
    Louis S. Wise, of Abilene, for appellant. C. 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 & Rep’r Indexes-
    
   HARPER, J.

In this case an indictment was returned against appellant by the grand jury of Taylor county, charging him with .burglary on the morning of the 31st day of August.

He was arrested on that day, and served with a copy of the indictment. It appears from the record that he ivas carried into open court on that afternoon, and an attorney appointed to represent him. The record discloses that on Saturday evening at this time, as appellant was in jail, the case was set for trial on the following Monday, the court stating that appellant waived the two days he is allowed by law to prepare for trial. When the case was called for trial on Monday, the attorney who had been appointed by the court filed the following motion: “The defense in the case of the State of Texas v. Sam Spicer hereby files this, his motion for a continuance, for the following reasons, to wit: (1) That the defendant was arraigned Saturday afternoon, and furnished with a copy of the indictment, and counsel appointed to defend him, and that on Monday morniDg the case was called for trial, and the defense has failed to collect proper evidence owing to the lack of time; that the defense believes, and has reason to believe, that, if proper time is given, he will be able to secure witnesses, and for this the defense asks that the case be continued.” The' court overruled this motion, one of the grounds for so doing being that appellant had waived the two days allowed by law, and the case set for trial on this day at his request. Appellant then moved to continue the case on account of the absence of Mr. Adams and Cleve Spicer, stating what he expected to prove by the witnesses.

If the facts stated that he expected to prove by these two witnesses would have been any defense to the accusation against him, we would be inclined to hold that the court should have postponed the case until the presence of these witnesses could have been obtained, but, , if the witnesses had sworn to the facts stated in the application, it would have been no defense, as we read the record. It appears from the record that the barn of appellant’s father, R. Spicer, was broken open at night, and some sacks of oats stolen. The next morning Mr. Spicer missed the oats, and traced some wagon tracks to the barn of George Combs. There he found four sacks of oats which he says he recognized as the oats stolen from his barn by the way the sacks were sewn. The wagon standing by the barn had loose oats in the bed. George Combs testified he bought these oats from appellant. Appellant at an examining trial admitted he sold these oats to Combs, and had hauled them to Combs’ place in this wagon. Appellant’s father testified that appellant did not live with him, and had no right to go into his barn and take his oats. In the application for a continuance it is stated it is expected to be proven by Mr. Adams that he had also missed some oats, and oats, were stolen from him on the night that Mr. Spicer lost his oats. As the application does not state that Mr. Adams could or would identify the oats found in Combs’ barn as his oats, and the record discloses that Mr. Spicer does positively identify the oats found as his oats, the facts that Adams would testify he had oats stolen from him would present no defense to this accusation. It is nowhere stated that it was expected to be proven that the oats were in fact Adams’ oats. By the witness Cleve Spicer it is stated it is expected to be proven that “Mr. R. Spicer had never told defendant that he did not have permission to come on his premises.” As Cleve Spicer did not live with R. Spicer, it is incomprehensible to us as to how he could testify that R. Spicer “had never told appellant he did not have permission to come on the premises.” But suppose he had never told appellant not to come on the premises, as appellant was not living with R. Spicer, nor working for him, this would not authorize him to go on the premises in the nighttime, break into his bam, and steal oats, if he did do so. Consequently, no fact stated that he expected to prove by these witnesses could or would have been any defense to the burglary of the barn, and we cannot say that the court erred in the matter.

While in the brief in this court it is urged that appellant had not been served with a copy of the indictment for two days when tried, and we are asked to reverse the case for that reason, yet in the motion for a continuance, filed in the trial court, this ground is not urged. We suppose the reason (why it was not urged at that time was because of the waiver of appellant, and tlie request that the court says he made to have the case set for trial on Monday. In Richardson’s Case, 7 Tex. App. 486, it is held that, after verdict, it is too late to make this contention, and article 546 of the Code of Criminal Procedure provides that he shall be entitled to two days after service of copy of indictment, unless the right to such copy or to such delay be waived. In this case, as, the record discloses that the time was waived, no error is presented.

In another bill it is made to appear that, when R. Spicer found the oats he claimed in George Combs’ barn, he at once reported it to the justice of the peace, and sued out a search warrant, and a warrant was issued for George Combs. Mr. Whaley, a deputy sheriff, arrested George Combs, and while on the way to the justice’s office he told Mr. Whaley he had purchased the oats from appellant. On the way to the justice’s office they met appellant, and, when he was asked if he sold Combs any oats, he first said, “No,” and then laughingly remarked he might have done so. The deputy sheriff then asked appellant to go to the justice’s office with them. ' No complaint was ever filed against appellant, but a hearing was had, and George Combs was bound over to await the action of the grand jury. At this hearing appellant testified, and testified that he had sold George Combs four sacks of oats, but declined to say where he had obtained the oats, saying that before delivering the oats to Combs he had them hid on the creek north of town; that he got a horse out of a pasture, hitched it to the wagon, and carried the oats to Combs, and Combs had paid him for them. The grand jury, however, when considering the case, indicted appellant, and did not indict Combs. Appellant objected to his statements made at the hearing in justice court being introduced in evidence against him. As the record discloses that no complaint was ever filed in the justice court against him, that he was never arrested charged with this offense until after indictment was found, Deputy Sheriff Whaley testifying that appellant was not placed' under arrest, and nothing was said that could or would lead him to believe that he was under arrest, and, in fact, no complaint on this charge was made against appellant until after the grand jury returned the bill of indictment and he was not arrested until after indictment found, consequently the statements made by appellant were admissible in evidence.

The judgment is affirmed.  