Turner v. State

• Decision Date: 23 October 1886
• Citation: 2 S.W. 619
• Parties: TURNER <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 619

2 S.W. 619

TURNER

v. STATE.¹

Court of Appeals of Texas.

October 23, 1886.

Appeal from district court, Freestone county.

The conviction was for burglary, and the penalty imposed was a term of two years in the penitentiary. The transcript brings up no statement of facts.

Bell & Bell and E. J. Hamner, for appellant, assailed the indictment as duplicitous, and the judgment as unsupported by the verdict.

Asst. Atty. Gen.Burts, for the State.

WILLSON, J.

It was not error to overrule defendant's exceptions to the indictment. Both burglary and theft may be charged in the same indictment, and in the same count. Dunham v. State, 9 Tex. App. 330; Miller v. State, 16 Tex. App. 417.

In this case the indictment, in the same count, charges both burglary and theft; but the court, in its charge to the jury, submitted only the issue as to burglary, and the jury returned a general verdict of guilty, upon which the court adjudges defendant guilty of burglary. The verdict conforms to the indictment and the charge of the court, and the judgment and sentence conform to the verdict. Evidently the conviction is for burglary alone, but it operates as a bar to any further prosecution against defendant for the theft charged in the indictment. Miller v. State, 16 Tex. App. 417; Howard v. State, 8 Tex. App. 447. We perceive no error in the verdict and judgment.

There is no statement of facts in the record. Defendant undertakes to account for the absence of such statement. He shows that an order of court was made and entered allowing 10 days after the adjournment of the court to prepare, etc., a statement of facts, and that, five days after the adjournment of court, the judge of said court departed this life, whereby defendant has been deprived of a statement of facts. It is not made to appear that defendant used any diligence to obtain a statement of facts. It does not appear but that such statement could have been obtained by him by the use of proper diligence. The judge lived five days after the adjournment of court, and no reason is shown why, during this time, the statement of facts could not have been obtained. We cannot say, from the showing before us, that the defendant has been deprived of a statement of facts without fault on his part.

Finding no error in the judgment, the same is affirmed.

1. Reported by Messrs. Jackson & Jackson, official reporters of the Texas court of appeals.