
    SHETTERS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    1. Indictment and Information (§ 110)— Language of Statutes.
    A motion to quash an indictment for burglary by the discharge of firearms into a house in the nighttime, with intent to commit a felony in the house, in violation of Pen. Code 1911, art. 1307 (841), was properly overruled, where the indictment was drawn strictly in the form laid down in White’s Ann. Pen. Code, art. 1436.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110; Burglary, Cent. Dig. § 31.]
    2. Criminal Law (§ 595)— Continuance-Grounds — Discretio n .
    The accused failed to show that he had exercised due diligence to procure an absent witness, though he had been indicted at a former term and his case continued to the present term, and on reindictment had been granted a postponement. It did not appear that the testimony of the absent witness was probably true, or would affect the result; the alibi which he expected to prove by him being refuted by the positive testimony of four witnesses that the accused was present at the time and place of the offense. Held, that the trial court did not abuse its discretion by overruling motion for a continuance.
    [Ed. Note. — Eor other cases, see Criminal Law. Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    3. Criminal Law (§ 1172) — Appeal—Review— Harmless Error — Certifying Instructions.
    Under Code Cr. Proc. art. 723, as amended in 1897 (Laws 1897, c. 21). now article 743, Code Cr. Proc. 1911, providing that a judgment shall not be reversed for errors not calculated to injure the rights of the accused, failure of the court to certify his charge, as required by Code Cr. Proc. 1911, art. 738 (718), was harmless, where it resulted from mere inadvertence, and where the charge in the record was the only charge given to the jury, or upon which they acted.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163; Dec. Dig. § 1172.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    Sim Shetters was convicted of burglary of a private residence, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was convicted of burglary of a private residence, and his punishment fixed at five years in the penitentiary.

The indictment charged the offense properly under the statute, and under that clause of it in P. C. art. 1307 (841), by the discharge of firearms into the house, with intent to injure the persons therein. The indictment follows the statute strictly, and is in the form laid down by Judge White in his Annotated P. C. art. 1436. The appellant’s motion to quash the indictment was properly overruled. Garner v. State, 31 Tex. Cr. R. 22, 19 S. W. 333; Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120.

There was no error in overruling appellant’s motion for a continuance. The record shows that the appellant was indicted for the same offense at the previous term of the court at which this trial occurred ; that at this term the indictment, for some defect therein, was quashed, and he was reindicted on September 7, 1911; that when the old case was called for trial the appellant made an application for continuance on account of the absence of the same witness Bruce Waddell, setting up therein what was expected to be proven by him, but is not disclosed in this record. The record further shows that the witness was a resident of Orange county; that, although this new indictment was found on September 7th, he made no application for process until the next day; that he then applied for a subpoena for this witness, which had not been returned on September 13th, the day this motion for continuance was made and the trial begun. Why the process was not returned is not shown, either in the motion for continuance or subsequently in the motion for new trial. The record further shows that no process whatever was issued for this witness, at the instance of appellant, in either case prior to September 8th. The judge, in allowing the bill to the overruling of this motion for continuance, qualified it by stating that the appellant was in-dieted for this same offense at the previous term of the court. Defendant was arrested and the case continued until the present term, when a motion to quash that indictment was sustained. The new bill on which this trial was had was then found by the grand jury. The defendant demanded time, and the case was postponed until September 13th; that the witness, on account of whose absence this motion for continuance was made, was not in attendance on the court at any time, and the applications for continuance in the old and new cases did not agree as to the testimony of the witness, and the court, not believing it probably true, overruled the motion. In overruling the motion for new trial on September 16, 1911, the judgment shows that the court heard the evidence submitted thereon and overruled it.

Appellant claimed in this application that he expected to prove by the absent witness that said witness was with him continuously from before until after it was alleged appellant shot into the house of Mrs. Ward. Appellant himself did not testify. The state proved by four witnesses, clearly and distinctly, that the appellant did, at the time and place charged in the indictment, shoot into the house of Mrs. Ward; he, shortly prior thereto, having talked outrageously to her and called her many ugly names, the details of this not being given in the evidence, showing appellant’s ill feeling and animus towards Mrs. Ward. Under this record, as shown to us, we' are of the opinion that the court did not commit reversible error in overruling this motion for continuance.

The only other ground is appellant’s complaint, shown by bill of exception, to the fact that the court below did not sign his charge to the jury, claiming that this is a fatal error, requiring a reversal. The bill shows that on the trial, after the testimony for the state and the defendant had been introduced and argument of counsel for both sides heard, and before the jury retired to consider their verdict, the court read and delivered to the jury his charge, quoting it in full in the bill; that the jury took this with them in their retirement to consider their verdict; that neither appellant nor his counsel knew that the charge was not signed by the judge until after the verdict had been rendered; that they called the trial court’s attention to it in the motion for new trial, which was the first opportunity they had to do so; that at that time, on the back of the charge, was made an indorsement by the judge, explaining that he inadvertently overlooked signing the charge before it was read to the jury and taken by them; that the said charge of the court, which was not signed by him, was written by the judge as his charge in said cause, and he had it filed by the clerk and read it to the jury; “and is the charge, and only one, the jury carried with them in their deliberation of the case, and is the charge they delivered into court with their verdict, and which was received by the clerk along and with the verdict of the jury, when same was taken and heard by the court. This charge was fastened together with metallic springs, and which, by reason of oversight or inadvertence, was not signed by me.” From all of this, it is perfectly clear to us that this was the charge, and the only charge, given by the court to the jury. It was the only charge the jury, saw or had anything to do with, and upon which they solely, so far as the charge is concerned, acted. There is no intimation of anything else.

Art. 738 (718), O. O. P., requires the charge of the court “to be certified by the judge and filed among the papers of the cause and shall constitute a part of the record of the cause.” This statute, before the amendment in 1897 (Laws 1897, c. 21), of article 713 (723), had been construed by this court to require the signature of the judge to certify it; but as -to this article 738 (718) the amendment of 1897 expressly requires that when the requirement of certain articles of the C. 0. P., including this article, “have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant.” Prior to 1897, said article 743 (723) expressly required this court, in the event this requirement had been disregarded, to reverse the judgment. There was no possible injury to the defendant, as shown by this record, in the judge not signing his charge in this case; and, under the express provisions of the statute, we are forbidden to reverse this case, because he did not sign it.

The judgment will be affirmed.  