
    YOUNG v. STATE.
    (No. 5016.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Indictment and Information <@=>125(3)— Duplicity.
    In indictment for burglary, alleging that defendant did “break and enter” “in the daytime and at night,” was not duplicitous.
    2. Criminal Law <@=>622(1) — Res Judicata— Severance.
    The granting of motion for severance at a previous term was not res judicata, and the trial judge, under Code_ Cr. Proc. 1911, art. 727, could grant a motion of the other defendant for severance, and change the order of trial, especially where the second defendant was sick and could not be tried.
    3. Criminal Law @=>1097(3) — Review — Statement op Pact.
    In the absence of statement of facts, a bill complaining of the overruling of a motion for continuance on account of absence of a witness cannot be reviewed.
    Appeal from District Court, Polk County; J. Llewellyn, Judge.
    J. Young was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of burglary. There is no statement of facts. t

The first part of the indictment was regular. Then it averred that on or about February 28, 1917, in said county, appellant “did then and there unlawfully, in the daytime and at night, by force, threats, and fraud, break and enter a house there situate and owned by John Handley,” without the consent, etc., of the said Handley, and with the intent, etc., to steal. The latter part of the indictment charging the intent to steal is in regular form and clearly sufficient. No point is attempted to be made against it.

Appellant made a motion to quash the indictment, claiming that it was duplicitous in charging in the same count a burglary both “in the daytime and at night.” As seen, the indictment specifically averred that the burglary was committed “by force, threats, and fraud,” and also that he did “break and enter” a house, etc.

It has been the settled law of this state, since the decision of this court in the Carr Case, 19 Tex. App. 635, 53 Am. Rep. 395, that in an indictment for burglary, other than the burglary of a private residence at night, if it alleges that the accused “did break and enter,” it need not be alleged whether the entry was in the daytime or at night; that under such an allegation, when the proof shows the entry by force applied to the house, which is a “breaking*” with the intent to commit felony or theft alleged, it is immaterial whether the house was entered in the daytime or at night. In other words, when an indictment alleges, as stated above, that he “did break and enter,” and by force, a house, with the intent to commit theft, such an indictment charges both a nighttime burglary and a daytime burglary. For some of the cases so holding, see 2 Branch’s Ann. P. C. § 2327.

In Walker v. State, 55 Tex. Cr. R. 547, 117 S. W. 797, the indictment alleged that appellant by force, threats, and fraud did bur-glariously and fraudulently break and enter a house, etc. He contended that under said allegation the court should have limited the charge to a daytime breaking, This court, through Presiding Judge Davidson, held:

“It will be noted that the court did not select either day or night breaking, and it may be stated that the court’s charge covered a daytime or a nighttime burglary.”

And further:

“We are of opinion that the contention is not correct. This question was decided adversely to appellant in the case of Carr v. State, 19 Tex. App. 635 [53 Am. Rep. 395]. The Carr Case has been followed in an unbroken line of decisions, of which there has been quite a number written.”

In Stephens’ Case, 69 Tex. Cr. R. 380, 154 S. W. 1001, the indictment alleged that appellant aid by force, threats, and fraud break and enter a house, etc. Appellant therein attacked the indictment on the ground that it did not allege whether the burglary was committed in the daytime or night. Judge Davidson said:

“Nor is there any merit in the proposition that the indictment failed to allege whether the offense was committed in the daytime or nighttime. It does allege that the house was, by force, threats, and fraud, broken and entered. This was sufficient to cover a daytime or nighttime burglary” — citing the Carr and Walker Gases, supra, and other cases.

In Montgomery v. State, 55 Tex. Cr. R. 506, 116 S. W. 1162, this court, through Judge Davidson, held:

“That portion ef the criticism in reference to the indictment failing to allege definitely whether it was a night or day breaking is also without merit. The indictment charged specifically that the defendant did by force, threats, and fraud burglariously and fraudulently break and enter a house. This is a sufficient allegation to charge either a night or day time burglary under the general statute” — again citing the Carr and other cases.

In Buchanan v. State, 24 Tex. App. 199, 5 S. W. 848, this court, through Judge Will-son, held:

‘.It is charged in the indictment that the burglary was committed by means of force, threats, and fraud, and that the defendant did “break and enter’ the house. The time, whether daytime or nighttime, is not alleged. It has been held by this court that such an indictment will support a conviction for either a daytime or nighttime burglary, if the proof shows that the force used in the perpetration of the burglary was applied to the building” — citing the Carr and another case.

In Gonzales v. State, 12 Tex. App. 657,”the indictment was in two counts; one charging specifically burglary in the daytime, and the other in the nighttime. This court, by Judge Willson, said:

“Before the trial of the case commenced the court required the district attorney to elect which of these counts he would proceed to try the defendant upon, and he elected to proceed upon the second count. In this we think the court erred. An indictment may contain as many counts, charging the same offense, as the attorney who prepares it may think necessary to insert. C. C. P. art. 433. * * * Where several counts are introduced in an indictment solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offense, as in this case, the state cannot properly be required to elect. 1 Whart. Am. Cr. Law, 416; Dill v. State, 1 Tex. App. 278; Weathersby v. State, Id. 643; Dalton v. State, 4 Tex. App. 333; Irving v. State, 8 Tex. App. 46. The offense charged in each of the counts in this indictment is the same; the only difference being that one count charges it to have been committed in the daytime and the other that it was committed in the nighttime.”

As stated, where an indictment for burglary alleges that appellant did break and enter a house by force, without alleging whether it was in the daytime or nighttime, charges both daytime and nighttime burglary. Hence, where, as in this ease, the indictment charges that appellant “did break .and enter” by force a house, it certainly would not vitiate the indictment to allege that this was done both in the daytime and in the nighttime. What can be alleged indirectly can certainly be alleged directly.

At the May term, 1917, appellant made a motion averring that Jim I. Voorhies was separately indicted for the offense growing out of the same transaction of which he was indicted, and that Voorhies’ testimony was material for his defense, and sought a severance. The court at that time granted his motion, .and put Voorhies first on trial. The jury failed to agree, and a mistrial therein was entered. The court then at that time continued all cases for that term. At the subsequent term Voorhies made an affidavit in accordance with the statute, seeking a severance from appellant, and asking that appellant’s case be tried first, in order that he could use his evidence in his behalf when he was tried. I-Iis motion was also in accordance with the statute. Voorhies’ attorneys requested the district attorney to postpone his case for a few days. The district attorney declined to do this unless defendant’s attorneys would agree to and would file an application for a severance, which they then did. On the hearing of Voorhies’ motion the matter was submitted to the court, without any suggestion by his attorneys as to what action the court should take. Voorhies’ motion was then granted by the court to which appellant excepted. The court, in approval of the bill presenting this question, qualified it by stating that Voorhies was sick and could not be tried at that term of the court, and defendant’s case appeared first on the docket.

The granting of appellant’s motion for severance at the previous term of the court, as has been expressly held by this court in Brooks v. State, 42 Tex. Cr. R. 350, 60 S. W. 53, was not res judicata of the question of a; severance between different defendants at the next term; that the severance at the time was granted for that trial, and “upon subsequent trials the parties would have the right to change the order of trial. * * * ” The statute (article 727, C. C. P.) provides that, in the event two or more defendants make an affidavit for a severance “and cannot agree as to the order of trial, then the presiding judge shall direct the order in which the .defendants shall be tried: Provided, that the making of said affidavit does not, without other sufficient cause, operate as a continuance to either party.” In this case, as shown, Voorhies, at the term appellant was tried, made a motion for a severance. Appellant did not at that term make any such motion. He relied on his motion made at the previous term. But in effect they could not or did not agree which should first be tried. The court then undoubtedly, under the statute, had the right, as well as it was made his duty, to determine the order of trial, and could, as he did, require appellant to be tried first. In addition, if he had required that Voorhies should first tried, then, as he states in the qualification to appellant’s bill, Voorhies was then sick, and could not be tried at that term, and this would have resulted in a continuance of appellant’s case. This the trial judge had a right to prevent under the terms of the statute. Stouard v. State, 27 Tex. App. 11, 10 S. W. 442; King v. State, 35 Tex. Cr. R. 478, 34 S. W. 282; Locklin v. State, 75 S. W. 306; Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 351; Millner v. State, 75 Tex. Cr. R. 22. 169 S. W. 902; Howard v. State, 79 Tex. Cr. R. 267, 184 S. W. 507. On both and eacli of said grounds the court’s action presents no reversible error.

Appellant has another bill complaining of the action of the court in overruling his motion for a continuance on account of the absence of another witness. The state contested this motion. This question cannot be considered, in the absence of a statement of facts, as has all the time been held by this court. Besides, in hearing the contest, the evidence heard by the judge must be held to have been sufficient to have justified his action. What testimony was heard is not shown by the bill or the record otherwise.

The judgment is affirmed. 
      ®=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and -Indexes
     