
    HUGHES v. STATE.
    (No. 5672.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1920.
    On Motion for Rehearing, March 3, 1920.)
    1. Criminal law &wkey;>603(ll) — Denial of continuance TO PROCURE TESTIMONY OF ABSENT WITNESS NOT ERROR, WHERE APPLICATION FAILED TO SHOW WHEN SUBPCENA WAS ISSUED.
    Where the application for continuance failed to show when a subpoena for an absent witness was issued, and no date was mentioned nor copy of subpoena attached, the denial of defendant’s motion for continuance to procure the testimony of such witness was not error, as legal diligence was not shown.
    2. Criminal law <&wkey; 1097(3) — In the absence OF STATEMENT OF FACTS, DENIAL OF CONTINUANCE FOR ABSENCE OF WITNESS CANNOT BE REVIEWED.
    In the absence of a statement of fact, the appellate court cannot determine the materiality of the testimony desired from an absent witness so as to determine whether the denial of a continuance was erroneous.
    3. Criminal law <&wkey;406(2) — Statements by ACCUSED LEADING TO DISCOVERY OF STOLEN PROPERTY ADMISSIBLE THOUGH HE WAS NOT WARNED.
    Statements and admissions made by defendant which led to the finding of the alleged stolen property are admissible, though made under arrest and without warning.
    
      On Motion for Rehearing.
    4. Criminal law <&wkey;1160 — Appboved verdict ON CONFLICTING EVIDENCE WILL NOT BE DISTURBED.
    Where there is a mere conflict of evidence, the appellate court will decline to interfere and will approve the action of the trial court in , overruling a motion for new trial on the grounds of insufficiency of the evidence.
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Lucian Hughes was convicted of felony theft, and he appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

The appellant in this case was convicted of felony theft, in the criminal district court of Dallas county, and given two years in the penitentiary.

The case comes before us without a statement of facts, and but two bills of exceptions. The first of these is to the action of the trial court, in overruling appellant’s motion for a continuance, asked for the purpose of obtaining the testimony of one Ollie Lanksford. An examination of the record discloses that the application for continuance fails to disclose when the subpoena for said witness was issued. No date was mentioned in the application, and no copy of said subpoena was attached. Legal diligence is not shown by appellant, and the motion was properly denied. In the absence of a statement of facts, we cannot decide as to the materiality of the testimony of the absent witness. '

Appellant has also a bill of exception to the | testimony as to statements and admissions made by him, as recited in the body of the bill, while under arrest and unwarned. The trial court states, in his explanation approving said bill of exception, that, at the time of making such statements or admissions, the appellant was not under arrest, and that said statements led to the finding of the alleged stolen property; in which latter- event we have always held such statements admissible, even though made under arrest and without being warned.

The charge of the trial court and the indictment seem to be in conformity with law.

No error appearing, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant presents his motion for rehearing, asserting two grounds of error, to wit: That the trial court should have granted his application for a continuance, and that the evidence does not support the verdict.

We have again reviewed the application for a continuance, in order to obtain the tes-> timony of Ollie Lanksford, but find the record bare of anything legally sufficient in the way of diligence. It is asserted in the application that the subpoena was issued for the witness Lanksford to appear at court on the 18th day of September, 1919; 'but when said subpoena was issued is not stated, and, inasmuch as no copy of the subpoena is attached to the application, we are wholly unable to ascertain the date of its issuance; and this is not held to be a sufficient showing of diligence by any authority with which ive are acquainted.

Reviewing the statement of facts now filed, we are unable to agree with the contention that the evidence does not support the verdict. It appears that the appellant had been working for the owner of the alleged stolen car, had been discharged, and, after the termination of said employment, had taken a car from the control and management of his former employer, which car was later found out on a road with most of its parts gone. Appellant claimed to have borrowed the car; but this was denied by the owner, and the issue has been settled by the jury adversely to appellant. Where there is a mere conflict of evidence, this court will decline to interfere, and will approve the action of the trial court in overruling a motion for a new trial on the grounds of the insufficiency of the evidence.

No error appearing, the motion for rehearing is overruled. 
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