
    SHIPMAN v. STATE.
    (No. 8260.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    1. Indictment and information 10(18) — indictment in language of the statute will not be quashed.
    Indictment in approved form in language of Pen. Code 1911, art. 1323, punishing breaking and entering of vessel or railroad car in daytime with intent to commit felony, will not be quashed.
    2. Criminal law &wkey;>200(3) — Conviction of theft does not bar prosecution for burglary.
    Person may be convicted of burglary, and for whatever other offense is committed after burglarious entry, and fprmer conviction of theft will not bar prosecution for burglary.
    3. Criminal law <&wkey;603( 10) — Affidavit held insufficient to show that witness was unable to attend court at any time, during trial.
    Affidavit for postponement of trial because of illness of witness, stating that witness was sick the night preceding trial, and unable to attend court on morning set for trial, without negativing fact that witness might have been, able to attend court at any time after that morning, does not sufficiently show that witness was unable to attend court at any time during trial.
    Commissioners’ Decision.
    Appeal from District Court, Jones County ; W. B. Chapman, Judge.
    " Jake Shipman was convicted of burglary, and he appeals.
    Affirmed.
    See, also, 265 S. W. 570.
    Lon A. Brooks, of Anson, and A. J. Smith, of Haskell, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris Asst. State’s Atty., both of Austin, for the State.
   BEBBT, J.

Appellant was" convicted in the district court of Jones county for the offense oí burgiary, and bis punishment assessed at confinement in the penitentiary for a term of two years.

There is no merit in appellant’s contention that the indictment should have been quashed. The indictment is in the language of article 1323 of the Penal Code, and it is evidently a copy of the approved form found on page 1296 of Branch’s Penal Code.

Complaint is made to the effect that the court erred in refusing to submit to the jury appellant’s plea of former jeopardy. The contention is made in this plea that the appellant had already been convicted for the offense of theft growing out of this same transaction. The authorities in this state hold that a former conviction for theft will not bar a prosecution for burglary, and they uniformly hold that a party may be convicted of burglary, and for whatever other offense is committed after the burglarious entry. Smith v State, 22 Tex. App. 353, 3 S. W. 238; Rust v. State, 31 Tex. Cr. R. 75, 19 S. W. 763; Loakman v. State, 32 Tex. Cr. R. 564, 25 S. W. 22; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376; Richardson v. State (Tex. Cr. App.) 75 S. W. 505.

Appellant complains of the action of the court in refusing to postpone the case after announcement of ready for trial because of the'illness of the appellant’s wife. It is his contention that her testimony was material to his defense, and that she was unable to attend court. We have • carefully considered the application for postponement, and the affidavit of the wife of the appellant, which is attached to the motion for new trial, and we have reached the conclusion that both the application and the affidavit wholly fail to show that her condition was of such a serious nature as to prevent her from attending the trial of the case. The case was tried on the 15th day of June, and the affidavit of the absent witness goes no further than to show that on the night of the 14th she was taken very sick and was sick and unable to leave her room and attend court as a witness on the morning of June 15. It nowhere negatives the fact that she may have been able to attend court at any time after the morning of the 15th of June. We also note in' this connection that the motion for new trial goes no further than to say that defendant's wife was sick, and the court certifies that the. defendant could have proved by Dr. Jones that about noon on the day of the trial he examined the physical condition of the defendant’s wife, and found that his said wife at that time was suffering from a' severe pain in her back, and that she was in a very nervous, hysterical condition, and was bordering on nervous prostration. In our opinion, this showing is entirely insufficient to show that said witness was unable to attend court at any timé during the trial of the case, and before the testimony had been concluded. In this connection it may also be said that we find no written motion to postpone in the record.

There is no merit in appellant’s contention that the court should have submitted the question of the witness John N. Stephens’ being an accomplice. The appellant’s own testimony fails to raise that issue as to said witness.

We have carefully examined all other assignments presented by the appellant in this case, and have reached the conclusion that none of them are of such merit as would warrant a reversal of the case.

Believing that the appellant has been accorded his right of a fair trial under the forms of law, it is our opinion that the judgment should in all things be affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  