
    COPREW v. STATE.
    (No. 4937.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.)
    1. Criminal Law <©=5598(6) — Continuance-Diligence Required.
    Where an indictment was returned in September and process was not asked for a known witness until six days before the trial in November, there was not sufficient diligence to entitle defendant to a continuance.
    2. Criminal Law <©=>597(3) — Continuance-Absent Witness.
    Where evidence was that defendant assisted another in a burglary by hauling off and concealing the goods, there was no error in refusing a continuance on the ground that the other, if present, would testify that he committed the burglary.
    3. Burglary <®=>41(1) — Sufficiency of Evidence.
    Evidence held, sufficient to support a conviction of burglary.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Henry Coprew was convicted of burglary, and he appeals.
    Affirmed.
    John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary of a saloon, his punishment being assessed at four years’ confinement in the penitentiary.

There was a lot of whisky taken at the time, of the brand of Hill & Hill and Blue Ribbon. Appellant moved for a continuance on account of the absence of Corry Tippie. The indictment was returned in September, the case tried in November, and process was asked for five or six days prior to the trial. If Tippie would testify as indicated in the application, it was thoroughly known to appellant from the time of the burglary under the showing made by the application itself as well as by the evidence. The diligence is hardly sufficient, but an important question justifying the court in refusing the continuance is found in the fact that Tippie is alleged in the continuance itself to have entered the burglarized house and committed the theft, and that he would so testify on the trial if present. Whether he would so testify or not would be of no importance to defendant. His absence from Dallas county, as alleged in the application, at the time and under the circumstances would tend to indicate that he was avoiding criminal prosecution. But viewing the action of the court in the light of the evidence in the record from the standpoint of the motion for new trial, we are of opinion the court did not commit error. The facts may be considered, in the main, circumstantial in their nature; yet there is a confession or a statement of appellant as to where the stolen goods could be found,- and in pursuance to his statement they were found at the place indicated. He at first denied any knowledge of the matter and indicated a place where they could be but were not found. In a subsequent statement he seems to have told the truth about where the goods were; at least, they were found where he informed the officers they had been secreted. The evidence is uncontroverted that the saloon was burglarized and whisky taken in considerable quantity; that appellant and Oorry Tippie were acting together; and that appellant employed a chauffeur with a machine to transport the goods from where they were taken, or in front of the saloon from which they were taken, to a certain designated point in the city of Dallas. Tippie and appellant were acting together, and appellant paid the fee for the transportation of the goods, and then a further fee for carrying the goods from the place where they were deposited to his (appellant’s) home, amounting to $2. Had Tip-pie been present and testified that he entered the saloon and stole the whisky, under all the circumstances of this case it would not relieve appellant, because he was acting with him at the time in such manner as to authorize a conviction as principal. We are of opinion therefore that the refusal of the continuance does not show error. This seems to be the main contention.

The evidence is unquestionably sufficient to support the conviction, and appellant seems to have had a fair trial so far as this record shows.

The judgment will be affirmed.  