Opinion
No. 18052.
Delivered March 18, 1936.
1. — Burglary — Evidence.
Evidence held sufficient to support conviction for burglary of box car.
2. — Burglary — Continuance.
Overruling defendant's application for continuance, based upon absence of defendant's wife, who, it was alleged, was sick at the time of the trial, and by whom defendant expected to prove an alibi, held not reversible error, where such application was not signed and sworn to by defendant or signed by his attorneys and was otherwise insufficient.
Appeal from the District Court of Grayson County. Tried below before the Hon. R. M. Carter, Judge.
Appeal from conviction for burgary; penalty, confinement in penitentiary for two years and six months.
Affirmed.
The opinion states the case.
William W. Ballard, of Wichita Falls, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The appellant was tried and convicted of burglary and his punishment was assessed at confinement in the state penitentiary for a term of two years and six months.
The record shows that on the 25th day of March, 1935, a box car belonging to the M. K. T. Railway Company, which was standing on one of its side tracks in the town of Whitesboro, was forcibly entered and eight cases of shoes taken therefrom. The next morning between eight and nine o'clock while D. L. Austin, who lived near Mineral Wells, was at work on a fence, he noticed that an automobile with three men in it had stopped on the highway not over three hundred yards from where he was. He saw one man get out of the car and then some little time later the man re-entered it, and then they drove toward Mineral Wells. Mr. Austin, who also intended to go to Mineral Wells, went to the highway for the purpose of catching a ride in some passing car. From the highway he went a short distance down into the timber and found seven cases of shoes covered with brush. After finding the shoes he went back to the highway, where in a few minutes a car came along, picked him up, and carried him to town. Before they reached town they overtook a car in which three men were riding and which he took to be the same car that had stopped on the highway at a point near where he found the shoes. He took the license number of the car, reported the matter to the officers, who accompanied him to the place where the shoes were secreted. The officers took charge of the shoes, carried them to the city hall, and subsequently delivered them to the sheriff of Grayson County. A search of the appellant's car disclosed eight or ten pairs of shoes, various tools such as hammers, wrenches, hack-saws, pliers, bits, and bolt cutters. The shoes found in the appellant's car as well as those seven cases found hidden were identified as shoes that were shipped by the Consolidated Shoe Company of Lynchburg, Virginia, to Anderson Hodges of Whitesboro, Texas.
Appellant did not testify or offer any testimony, but contends that the testimony adduced by the State is insufficient to warrant and sustain his conviction. We cannot agree with him in his contention.
Appellant also complains of the action of the trial court in overruling his application for a continuance based upon the absence of his, appellant's wife, who was sick at the time of the trial, and by whom he expected to prove and would prove his alibi. An examination of the application shows that it is insufficient in that it is not signed and sworn to by the appellant, nor is it signed by his attorneys. Art. 545, C. C. P., requires all motions for continuance to be sworn to by the applicant himself. However, the application is insufficient in other respects and, therefore, the court did not err in overruling the same.
Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.
Affirmed.
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.