
    MOORE v. STATE.
    (No. 7867.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.)
    1. Burglary <&wkey;28(7) — Allegation! of ownership of goods in railroad car in agent not at variance with proof of ownership in railroad.
    In a prosecution for burglary from a sealed railroad car, where ownership of the property was alleged to be in the agent of the company’s affairs at the station involved, proof that the railroad track and the car belonged to a railroad corporation did not constitute a variance; the agent being at the time a special owner.
    2. Criminal law &wkey;>6l4(l) — Denial of continuance on ground of absent witnesses held not error.
    Denial of a second application for a continuance on the ground of the absence of witnesses helé not an abuse of discretion, where the testimony of such witnesses was in its nature cumulative, where the motion was not supported by affidavits of any of them, and where it was not shown that the absent witnesses had not disobeyed subpoenas issued requiring their attendance previously in another county.
    <@s»For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    M'inter Moore was convicted of burglary, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of two years.

A box car on the track of the Kansas City, Mexico & Orient Railway Company, at the village of Sagerton, was partly loaded with freight, billed for Vernon, Tex. The car was closed in the evening and sealed with the seal of that company. O. B. Poole was the agent of the railroad company. He directed the placing of the car and placed the seal upon it. He was the agent in charge of the company’s affairs at the station mentioned. The facts disclosing that the car and the railroad track upon which it was situated belonged to the railroad corporation resulted in no variance. Poole was the special owner. The ruling of the court that the ownership was properly laid in the agent Poole is supported by many precedents. See White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Modica v. State (Tex. Cr. App.) 251 S. W. 1050.

Two persons purporting to be eyewitnesses testified that they saw the appellant engaged in removing property from the car. Other evidence showed that the car had been closed and sealed and that the seal had been broken. The property that had been removed was afterwards found.

Appellant advanced the theory of alibi. According to his theory, he, on the night -on which the offense occurred, had been requested by a stranger to go to the village of Pea-fcocfc, about 35 miles distant. Appellant owned an automobile which he used as a service car. The man’s name was Whatley, and the appellant took him to the village of Peacock to the home of Jim Brister, reaching there about 12 o’clock at night. Appellant remained there only long enough to put some water in the radiator of his car.

A second application for a continuance was made to secure the testimony of five witnesses supporting the defense of alibi. The indictment was filed in. Haskell county in April, 1922, and in December of that year the case was transferred to Jones county, where it was tried in January, 1923. Subpoenas bad been issued commanding tbe attendance of tbe witnesses in Haskell county on November 20, 1922. The record is silent as to whether any of these Witnesses save one had ever obeyed the subpoenas. One of the witnesses mentioned in' the application had gone to California several months before the trial with appellant’s knowledge, and no effort was made to secure his deposition. Two of the witnesses were husband and wife, and their testimony, as set out in the application, is the same. The wife appeared and gave evidence on the trial. The alleged testimony of the other witnesses was cumulative in effect, as several witnesses testified to various details tending to support the appellant’s theory of alibi; at least, going to show that about the time of the offense, he was requested to take a man to Peacock and that he was seen in his car in company with a man at points between Sagerton and Peacock. The application being the second one, it fails to comply with the rule of diligence, in that it does not disclose that the witnesses had not previously disobeyed the subpoena. The testimony of all of the witnesses was in its nature cumulative, and, generally speaking, a second application will not be granted to secure cumulative testimony.

The record does not present a condition which would justify this court in holding that the trial court, in refusing to continue the case, abused its discretion. All of the witnesses save the one in California were near by. The motion for a new trial was supported by the affidavits of none of them. In the light of the record and the evidence heard, this court would not be warranted in ordering a reversal of the judgment on account of the refusal to grant a new trial.

The judgment is affirmed.  