The opinion
ON APPELLANT’S MOTION TO REINSTATE THE APPEAL.
CHRISTIAN, Judge.
The record having been perfected, the appeal is reinstated and the case considered on its merits.
The place of business of Leo Bergman was burglarized and a quantity of merchandise taken therefrom. Three days after the burglary appellants confessed to the arresting officer and told him where he could find the fruits of the crime. Pursuant to the statements of appellants the officer went to the home of appellant Tillman Burns and found a quantity of the stolen merchandise. The appellants each made a written voluntary confession. These confessions gave substantially the same ver
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sion of the transaction, each appellant stating in his confession that the burglary had been committed by the two appellants and Sam Brown pursuant to an agreement entered into between the parties. Omitting the formal parts, we quote, in part, the statement of appellant R. C. Burns, as follows: “Last Thursday afternoon, September 4th, 1930, Sam Brown, T. B. Burns, my brother, and I agreed to go in the store of Leo Bergman that night. We were all drinking over on the creek when we made this agreement. We ate supper at the home of my brother, where he had killed a black hen for supper. After we had gotten supper and sometime after dark we all three left there to go to Corrigan and go in the store. We got to Corrigan about eleven o’clock and waited behind Cobb’s store for a while. A train came in and Sam went over there to cut the screen. It was agreed that I should stay out there and watch and T. B. Burns and Sam Brown were to go in the store. This they did and I stayed out there and watched for them. I was going to throw a rock on the store if anyone was coming. They stayed in there about fifteen minutes and came out each came out carrying a sack. We left there right then and went back down the track. On our way back home two of us eat sardines and threw the cans away down the way we traveled home, just where I don’t know. After we had gotten close’ to home we divided the stuff. I got some bacon. One pair of gloves, several knives and some spelling tablets.”
We quote from the confession of appellant Tillman Burns as follows: “About Thursday night, September 4th, 1930, Sam Brown, R. C. Burns and I went over. to Corrigan, Texas, to go in the store of Leo Bergman. We had all three agreed to go in there that afternoon before, we were over on the creek about a mile from my house and there while drinking some whisky, it was mentioned by Sam Brown first that Leo should have several hundred dollars in that safe or vault, and that it had a sign on same that it wasn’t locked, and we then agreed to go in there that night. We all three above mentioned left my house to go over there sometime after dark. We walked over there and got there sometime about midnight I would-guess. When a train came in Sam cut the screen twice or three times. Then one of us two raised the window and Sam went in first then he pulled me in. We had thrown two sacks in there. After we got in there we began to gather stuff and put in the sacks. R. C. Burns was outside watching for us. We had all agreed that he was to watch and let us know if anyone was coming. And Sam Brown and I had agreed to go in and get the stuff. As soon as we got in there we unfastened the
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back door so that we could get out easy if necessary. Each of us got stuff in our sack, one sack was a grass sack and the ■ other a cotton sack. We had brought both of them with us. We got two full sides of meat, and two other pieces that would about make a third side. We got a package of rice. We got about five boxes of sixteen gauge shotgun shells. We got a piece of a box of twelve gauge shells. We got some seven or eight pocket knives. We got one can of sweet potatoes. We got some raisins. We got one can of soup. We got some, sardines. One big ‘Bale’ sack of tobacco. We got 5 bottles of three-sixes tonic. We got some snuff. We got some spelling tablets ‘called cat bird tablets.’ We got some gloves three and one-half pairs of gloves. We went in there about midnight. We got in by cutting the screen and raising a window. We traveled the track both coming and going, that is the track from Benford. We stopped at a branch and got water both coming and going. We hid under the water tank at Cobb’s store when we first got there. While in the store we ran over a chair and knocked it over and just left it that way. When we come out of the store R. C. Burns, my brother, was still there waiting for us. We all left there together and went back to my home. Before we separated that night we divided the stuff. R. C. took his and left and Sam and I went to my house and stayed all night.”
Appellants were separately indicted, but upon their motion were jointly tried. Appellant R. C. Burns pleaded not guilty. Appellant Tillman Burns refused to plead and the court entered a plea of not guilty for him. The last-named appellant filed an application for a suspended sentence. Appellant R. C. Burns did not testify. Appellant Tillman Burns took the stand and admitted his guilt, but declared that appellant R. C. Burns had nothing to do with the commission of the offense. He admitted that appellant R. C. Burns was outside the store, but testified that he was asleep. He said R. C. Burns was too drunk to know what occurred. Further, he testified that R. C. Burns had not entered into an agreement to burglarize the •store and did not know that he and Sam Brown committed the offense. He denied that appellant R. C. Burns received any of the stolen property.
No effort was made by either of the appellants to attack the voluntary character of their confessions.
Bill of exception No. 2 relates to the refusal of the court to grant appellant R. C. Burns’ subsequent application for a continuance. It is alleged in the application that the witnesses named therein would testify, if present, that they saw R. C.
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Burns on the evening before the burglary and the morning thereafter, and that he was in such a state of intoxication that, in their opinion, he did not know the difference between right and wrong. One of the witnesess would testify, according to the averments in the application, that R. C. Burns had been drunk several days prior to the burglary. We deem it unnecessary to mention the diligence shown in the application. Appellant R. C. Burns failed to attach to his motion for a new trial the affidavits of the absent witnesses showing that they would give the testimony alleged in the application. In the light of the testimony heard upon the trial, the opinion is expressed that, in considering the motion for a new trial, the trial court did not abuse his discretion in determining that the testimony of the absent witnesses was probably not true, and that such testimony was not of the character as that a different result might be produced thereby on another trial. In the absence of the affidavits of the absent witnesses to the effect that they would have sworn to the facts stated in the application for a continuance, the judicial discretion rested with the trial judge in determining, in passing on the motion for a new trial, whether or not the absent testimony was probably true, in view of all the evidence heard during the trial. Blanks v. State, 12 S. W. (2d) 564 ; Tubb v. State, 5 S. W. (2d) 150 .
Bill of exception No. 3 presents the following occurrence: While the sheriff was testifying on direct examination for the state, he stated that he had a conversation with the appellants and Sam Brown at the same time and in the presence of each other three days after the burglary, during which they told him where he could find the merchandise taken from the burglarized store. He said that the three parties admitted to him that they burglarized the store. He testified that pursuant to the declarations made to him by the parties, he found the stolen goods in the home of appellant Tillman Burns. He said: “Tillman said he had it (meaning the snuff) in his house and I found it there next day after they made the statement. Reece (appellant R. C. Burns) and Tillman Burns told me about some 666 Chill Tonic, the best I remember. They said that two bottles and I found one at Tillman’s.” Further, he said: “During this conversation they made a statement to me with reference to the fruits of the burglary of Leo Bergman’s store that I afterwards found to be true. They told about going out and going in .the store and on the way back what they had done.” It is certified in the bill of exception that the appellants were under arrest at the time the statements were made and that said statements were admitted by the court against both appel
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lants. Further, it is certified in the bill that none of the property was found where appellant R. C. Burns said it would be. Appellant R. C. Burns objected to the use of the testimony against him on the ground that he was under arrest and that it was not admissible for any purpose. In his voluntary confession appellant R. C. Burns made substantially the same statement the sheriff made. He made no attack on the voluntary character of his confession. No objection was made to the introduction in evidence against him of his voluntary confession. If the evidénce was improperly admitted, and this is not conceded, its reception does not constitute reversible error. It is a general rule that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony which was not objected to, as where the accused voluntarily gave testimony substantially the same as that erroneously received over objection. Texas Jurisprudence, vol. 4, page 587; Hathcock v. State, 16 S. W. (2d) 821 ; Lawler v. State, 9 S. W. (2d) 259 .
Bill of exception No. 19 reveals that when the confession of appellant Tillman Burns was offered in evidence, appellant R. C. Burns objected to it being introduced in evidence against him, in that it was a statement and confession made by his co-defendant after the conspiracy had terminated and was hearsay. Bill No. 20 shows that appellant Tillman Burns made the same objection when the confession of appellant R. C. Burns was introduced. It is not necessary to decide whether the fact that the confessions were taken at the same time and in the presence of each other and that each heard the confession made by the other at the time they were taken would render admissible both confessions against either of the appellants. The appellants were being jointly tried and it was proper for the court to receive in evidence the confession of appellant R. C. Burns as against him and the confession of the appellant Tillman Burns as going to establish his guilt. If appellant R. C. Burns desired to have the matter reviewed by this court, he should have excepted to the charge of the court for its failure to limit the use of the confessions, or else he should have presented a requested instruction on the subject. As far as the record reflects the matter, this he failed to do.
As shown in bill of exception No. 22, appellant Tillman Burns was asked on his direct examination to state how many members there were in his family. Upon objection by the district attorney he was not permitted to answer the question. The bill recites he would have answered that he had a wife and five children, the ages of the children ranging from two months
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to eight years. It is recited in the bill that appellant Tillman Burns had made an application for a suspended sentence. It is shown that appellant Tillman Burns was thirty-five years of age. Many witnesses testified that his general reputation for being peaceable and law-abiding was bad. The testimony of these witnesses was not controverted. If it had been proper for appellant to testify as to the fact that he had a wife and several children, we are unable to reach the conclusion that the refusal of the court to receive the testimony should work a reversal. The fact that it was shown beyond dispute that appellant Tillman Burns’s general reputation for being peaceable and law-abiding was bad would more than likely have impressed the jury with the view that his children should be removed from his influence.
The judgment is 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.