
    RAGLAND v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1913.)
    1. Criminal Law (§ 598) — Continuance-Diligence.
    Where accused was arrested for burglary on May 14th, indicted on May 22d, and brought to trial on June 4th, when he moved for a continuance because he had not employed eoun-sel, and because of the absence of two witnesses, whose names he did not know, the application was properly denied for lack of diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 594) — Continuance— Materiality of Testimony of Absent Witnesses.
    Accused, when arrested for burglary committed the night before, claimed to have purchased the stolen property about 20 minutes before from a large, heavy-set man. When brought to trial, he asked for a continuance because of the absence of witnesses claimed to have been present when he purchased the property. On the trial he claimed to have purchased the property from a man named Ash, whose appearance was wholly at variance with the description given, and who, at the time of the burglary and of the trial, was a fugitive from justice. The state’s evidence tended to show that accused had possession of the stolen property within an hour after the burglary. Held, that the application was properly denied, since the court was justified in finding that the witnesses would not have testified that accused purchased the property.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; D'ec. Dig. § 594.]
    3. Burglary (§ 41) — Evidence — Sufficiency.
    Evidence on a trial for burglary held conclusively to show accused’s guilt.
    [Ed. Note, — For other cases, see Burglary, Cent. Dig. §§ 9é-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, El Paso County; James R. Harper, Judge.
    Sam Ragland was convicted of burglary, and be appeals.
    Affirmed.
    Owen & Baykin, of El Paso, 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.

Appellant was prosecuted and convicted of the offense of burglary, and his punishment assessed at 2% years’ confinement in the penitentiary.

Appellant has three bills of exception in the record, all of which relate to the same proposition, and that is that appellant was placed on trial when he had no attorney, and when he desired the attendance of two witnesses whose names he did not know. No process had been issued for the witnesses, and no diligence used.

It appears from the record that R. V. Bowden’s place of business was burglarized on the 13th of May, and two suit .cases filled with clothing stolen; also a typewriter. Appellant was arrested next day in possession of one of the suit eases, while trying to sell some of the clothing. The other suit case was found in his room, as was also the typewriter, the typewriter being in his trunk, covered up, and the clothing had been taken out ,of the suit ease and placed in the trunk. When first arrested, he claimed that he had purchased the suit case from a-large, heavyset man about 20 minutes before his arrest. The. proof shows positively that the articles were stolen on the night of the 13th, and that he was seen in possession of them within an hour after they were stolen.

When the case was called for trial, he requested the court to postpone, stating that he had not employed counsel, but would do so in a day or two; that he had purchased the stolen articles from a man named Ash; that two men were present when he purchased them, and he did not know their names.

The sole question presented, is: Did the court err in refusing to give him further time in which to employ counsel, and err in refusing to give him further time in which to learn the names of the witnesses he says saw him purchase the stolen articles, and have them summoned? Whether he had attorneys on the trial of the case is hot made manifest, but that he had attorneys file a motion for new' trial is manifest.

Appellant was'first arrested, charged with this offense, on May 14th, and had a preliminary trial, and was bound over to await the action of the grand jury. He then knew he would need an attorney, and would need these witnesses, if any one saw him buy these articles. The grand jury indicted him on May 22d, and he was arrested on the indictment on that day. The case was called for trial on June 4th, and then it was this application for a postponement was made. We do not think the bills show any sufficient diligence on the part of appellant to leam the names of the witnesses or prepare the case for trial. The evidence strongly presents the theory that he himself was the thief, and the description he gave of the man from whom he purchased the property is wholly at variance with the appearance of Ash, from whom, on the trial, he says he purchased the property. The record further discloses that Ash, at the time of the burglary and at the time of the trial, was a fugitive from -justice, and clearly authorized the court to find that his testimony in regard to the purchase of the property on the night of the burglary was not probably true, and if lie should secure the attendance of the absent witnesses, whose names he did not know at the time of the trial, they would not so testify. We think the case discloses a total lack of diligence on the part of appellant, and- the evidence conclusively shows his guilt.

The judgment is affirmed.  