Polk v. State.

• Decision Date: 19 October 1910
• Citation: 132 S.W. 134
• Parties: POLK v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 134

POLK v. STATE.

Court of Criminal Appeals of Texas.

October 19, 1910.

Rehearing Denied December 7, 1910.

Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.

Garfield Polk was convicted of burglary, and he appeals. Affirmed.

V. E. Middlebrook, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

On the 19th day of March, 1908, an indictment was returned into the district court of Nacogdoches county charging appellant with the burglary of a private residence of Mon Hill. At a trial had in said court on October 1st of last year appellant was found guilty, and his punishment assessed at confinement in the penitentiary for a period of five years.

1. When the case was called for trial, appellant filed his third application for continuance, based on the absence of Kate Benton and John Bryant. It may be conceded that the testimony of each of these witnesses was material. In refusing the application the court states in his explanation attached to the bill that such application on its face shows a want of diligence, in this: that the then term of court convened on September 13th, and the case was not called for trial until October 1st, and that the witnesses had not appeared during these two weeks which had elapsed and no process had been applied for to secure their attendance; further, that the evidence is merely cumulative, and, again, that nearly four weeks had elapsed between the time of conviction and the overruling of the motion for new trial, and no effort had been made to secure either the presence of the witnesses or their affidavits in support of the motion for new trial. Under the explanation of the learned trial court, it does not admit of question that his action was not only authorized, but proper, in overruling the application for continuance and the motion for new trial based upon his action in respect thereto.

2. In motion for new trial, reference is made to bills of exception Nos. 2, 3, 4, 5, and 6, but an inspection of the record discloses that no such bills are contained in it. There is in the statement of facts some exceptions taken in a general way, but these are not sufficiently definite to demand review.

3. Again, it is urged that there is a variance between the allegation in the indictment and the proof. The indictment alleges that appellant entered the house in question with intent to commit the crime of theft, and with intent to steal certain personal property belonging to Mon Hill. The evidence shows that the only property that was in fact missed was a trunk belonging to Hill's daughter. We do not think the fact that, where one enters a house belonging to the head of the family, the fact that the only property which is removed from the house may belong to some other member of the family will constitute a variance. The crime charged is not theft, but burglary. The essential and indispensable ingredients of the offense of burglary is the felonious entry, and the intent may be to commit any...