
    EARNEST v. STATE.
    (No. 11746.)
    Court of Criminal Appeals of Texas.
    May 9, 1928.
    1. Criminal law <3=>939(l) — New trial for newly discovered evidence held properly refused in absence of showing of diligence.
    Refusal of new trial for newly discovered evidence held proper in absence of showing diligence in seeuringi evidence, particularly where motion was not sworn to by defendant.
    2. Criminal law <3=5365(1) — Testimony of theft of property other than gun mentioned in indictment held admissible as part of res gestee.
    In prosecution for burglary, testimony as to theft of property from burglarized premises other than gun mentioned in indictment held admissible as part of res gestae of offense.
    3. Criminal law <3=>4!9, 420(10) — Testimony as to conversation wherein another stated that he burglarized house and that defendant had nothing to d'o therewith held inadmissible as hearsay.
    In prosecution for burglary, testimony as to purported conversation between others, wherein person admitted that he burglarized house and took property alleged to have been stolen in indictment and that defendant had nothing to do therewith, held inadmissible as hearsay.
    Commissioners’ Decision.
    Appeal from District Court, Archer County ; E. G. Thornton, Judge.
    Curtis Earnest was convicted of burglary, and he appeals.
    Affirmed.
    O. M. Wylie, of Archer City, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J,

Offense, burglary; penalty, two years.

Three bills of exception appear in the record. The first raises the question of the error of the court in refusing a new trial for newly discovered evidence. The affidavits of two witnesses appended to the motion for new trial show, among other things, that, on the day of the alleged burglary, appellant was not out of sight of witnesses and was in their presence at such time Appellant must have known of these witnesses prior to the trial as it is alleged he was not out of their sight on the date of the burglary. No diligence is shown, nor is the said motion sworn to by appellant. The court’s action was proper. West v. State, 2 Tex. App. 209; Branch’s P. C. § 195.

The second bill shows that á witness was permitted to testify to the theft of property from the burglarized premises other than the gun mentioned in the indictment. This was part of the res gestae of the offense and admissible. Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983; Branch’s P. c. § 2347.

The third bill relates to the exclusion by the court of a purported conversation between one John Earnest and Annie May Caruthers, in which the said Elarnest told the witness, Annie May Caruthers, that he burglarized the house and took the property alleged to have been stolen in the indictment, and that the appellant had nothing to do with it. This is the substance of all shown in the bill as error. The excluded evidence was clearly hearsay. Appellant has not brought himself within the rule laid down in Dubose v. State, 10 Tex. App. 230, and the many cases subsequently following this authority. See, also, Hodge v. State (Tex. Cr. App.) 64 S. W. 242.

Believing the evidence sufficient, the judgment is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  