The appellant was sentenced to a term of two years in the penitentiary from Archer County, charged with burglary.
The appellant complains in four assignments of error of the action of the trial court, the first of which is that the court erred in overruling defendant's plea in limine, the plea alleging that Hon. A.H. Carrigan is the judge of the district in which Archer County is situate, and that he is not disqualified from trying the cause. That Hon. Jo A.P. Dickson is judge of a different district, and he is threatening to try the cause on invitation of the regular presiding judge. The plea alleges that Hon. Jo. A.P. Dickson was not appointed by the governor to hold court in Archer County; that he was not elected by the lawyers practicing at the bar to hold court in said county, and that appellant had not agreed to try said cause before said Judge. The plea was sworn to by appellant, but no proof was introduced as to the truth of the allegations contained in the plea. A plea of this kind does not prove itself, but takes evidence to sustain it, and especially would this be true when the record contradicts the plea, the order reciting:
"Monday, April 18, 1910.
"This day the Honorable District Court of Archer County was opened pursuant to adjournment, and Hon. A.H. Carrigan, District Judge of the Thirtieth Judicial District, having by mutual arrangement and for reason deemed expedient to them, exchanged districts for the time being with Hon. Jo A.P. Dickson, District Judge of the Fiftieth District; the said Hon. Jo A.P. Dickson was present and *Page 511 presiding." But even if the Hon. Jo A.P. Dickson had been holding merely upon the invitation of the regular presiding judge, who on account of sickness, for business or any other reasons, preferred to vacate the bench, if the adjoining judge was willing to hold court for him, our statutes authorized him to do so. Article 1108 of the Revised Statutes reads: "Any judge of the District Court may hold court for or with any other district judge." There was no error in overruling the plea.
The appellant's next contention is that the court erred in overruling his application for continuance. Waiving the question of diligence, we do not think the testimony desired from the witnesses Joe Nash and E.B. Weeks was material. All that it is claimed it is expected to prove by the witness Nash is that prior to the burglary that Geo. Parrish, a witness for the State, had said he had it in for the defendant, and that he intended to implicate him in some trouble that would send him to the penitentiary. If the defendant, in connection with Geo. Parrish, did get implicated into a burglary, even if it was at the instance of Parrish, he would still be amenable to the law. By the witness E.B. Weeks it is stated that defendant expected to prove that he had caught the witness Parrish in connection with another, near the store in which he was clerking, about 10 o'clock at night, and he asked them if they had not been going in the store and getting goods, and they answered no, but that appellant, Mont Hart, was stealing goods, and they were laying for him and would turn him in if they caught him.
Admit that all this is true; that the witness Parrish was very bitter in his feelings and anxious to do defendant all the harm he could, and send him to the penitentiary if possible — in what way could it be evidence in this case? Eliminate the testimony of the witness Parrish, and what does the record show? Appellant went to a livery stable late in the night and hired a buggy and horse; he and the witness Parrish were seen driving away from the stable in the buggy by the witness Oscar Johnson late at night after it had rained some; the store was broken that night; a buggy had been driven to the store, making a plain track after it had rained; flour and bacon were stolen from the store; early the next morning the sheriff and a number of citizens trailed the buggy tracks, and it led, first, to the house of Parrish, where a portion of the stolen goods were found. It then led to the rear of appellant's house, and in his house more of the stolen goods were found. In the record there is no explanation of his possession of these goods. The buggy was then trailed from appellant's residence to the livery stable. Upon inquiry it was learned that appellant had hired the buggy between eleven and twelve at night, and appellant had returned the buggy about daylight next morning — the night of the burglary — and had paid for the use of the buggy. In the buggy used that night was found grease signs and salt, and on the buggy springs a "right smart grease." The horse hired by defendant *Page 512 had a defect in one shoe. This was detected in the tracks of the horse drawing the buggy. In the absence of any explanation of appellant's possession of the stolen property, this is direct and positive testimony of defendant's guilt, outside of the testimony of the witness Parrish, and it would be immaterial what Parrish's state of feelings were toward appellant, or what statements he had made prior to the burglary.
The other witness named in the application was the wife of defendant, by whom he stated he expected to prove that he was at home from eleven o'clock that night until four next morning. The witness was in the town where the case was tried during the trial. It is true that in the application it is stated she was sick, and had been under the care of a physician for two or three days. No certificate or affidavit of any physician is attached to the application. No subpoena was ever issued for this witness, and no diligence shown. By the witnesses Oscar Johnson, Henry Hodges and others, appellant is shown not to have been at home, if their testimony is true, and in addition thereto it is shown by the witness Dickson and others, after his arrest, that appellant had come to them and asked if they could not say that on Thursday night before the burglary they had seen the things found in his house in their place of business. They answered they could not. In the light of all the testimony there was no error in overruling the application for a continuance.
There was no error in refusing to strike out the testimony of the witness Parrish.
While there is complaint in the motion for a new trial to the admissibility of the testimony of the witnesses M. Lea, Ed Goodwin, Charlie Martin, C.D. Williams and N.N. Ewing, there are no bills of exception in the record reserved to this testimony, and in this condition we can not pass on the question. The judgment is affirmed.
Affirmed.
ON REHEARING. March 8, 1911.