Page 619


2 S.W. 619


TURNER
v.
STATE


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.

---------------

Notes:

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

---------------