
    CASTENARA v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    1. Criminal Law (§ 1166%) — Continuance —Absence of Attorney.
    Where the attorney for accused, absent when the case was called, appeared before any witness was examined, and the only absent witness appeared before the trial was completed and testified, and accused was not injured by the absence of the attorney, accused could not complain that he was forced to trial during the absence of his attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    2. Witnesses (§ 48) — Competency — Conviction of Felony.
    One jointly indicted with accused and first tried and convicted of the felony charged is not a competent witness for accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. § 48.]
    3. Criminal Law (§ 424) — Evidence — Admissibility.
    Where one jointly indicted with accused was first tried and convicted of the felony charged, statements made by him to third persons -about the crime were inadmissible in behalf of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.]
    4. Criminal Law (§ 346) — Evidence—Admissibility.
    A witness, who testified to seeing accused and a third person together at a named place, could, to .fix the time, state that he saw them the night before he learned of the crime charged.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. § 786; Dec. Dig. § 346.]
    5. Criminal Law (§ 1097) — Appeal —Review — Statement of Facts.
    In the absence of a statement of facts, the insufficiency of the- evidence to sustain the conviction cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from District Court, Victoria County; C. F. Garsner, Special Judge.
    Carlos Castenara was convicted of burglary, and lie appeals.
    Affirmed.
    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.

Appellant, with one W. B. Barton, was jointly indicted, charged with burglary. A severance was had, and when tried appellant was adjudged guilty, and his punishment assessed at eight years’ confinement in the state penitentiary.

In bill of exceptions No. 1 appellant complains that he was forced to trial during the absence of his attorney. From the bill it appears that the case had been postponed on several occasions at the request of his attorney. When the case was finally set for a day certain, and his attorney notified, and while his attorney was not present when an announcement was made, yet the only absent witness appeared before the trial was completed, and testified in the case; and it further appears that his attorney did put in his appearance before any witness was examined, and as explained in the bill no injury could have or did result to appellant, and the bill presents no error.

Bill No. 2 complains of the action of the court in refusing to permit defendant to prove by his witness Ben Quesada the habits of the Mexican people about men and women all sleeping in the same room. As qualified by the court this could not, under the circumstances of this ease, have been a material inquiry.

By another bill it is made to appear that appellant’s codefendant, W. B. Barton, had been first tried and convicted. Under such circumstances he would not be a competent witness for defendant, and as he in law was not permitted to testify, what he stated to others about the alleged burglary would not be admissible. His evidence could not be gotten before the jury in this indirect way.

In the only other bill in the record complaint is made that the witness Amado Anganor was permitted to testify that he heard of the alleged burglary one morning, and that the night before he had seen appellant and his codefendant together at 11:30 o’clock at a named place. As fixing the time when he had seen appellant and Barton together at the named place, it was permissible for the witness to state it was the night before he learned of the burglary.

In the motion for a new trial there is no complaint of the charge of the court, and the only ground states that the evidence is insufficient to sustain the conviction. In the absence of a statement of facts, we cannot pass on this question.

The judgment is affirmed.  