Appellant was indicted for burglary and the commission of theft after the burglarious entry. He was convicted of “burglary and theft.” The verdict of the jury is: “ We, the jury, find the defendant guilty of burglary and theft as charged, and assess his punishment at confinement in the State penitentiary for the term of five years; ” and the judgment is : “ It is therefore considered and adjudged by the court that the defendant, Felix W. Robertson, is guilty of burglary and theft as charged, as found by the verdict of the jury aforesaid, and it is ordered and adjudged,” etc
Our statute provides that, “ if a house be entered in such manner as that the entry comes within the definition of burglary, and the person guilty of such burglary shall, after so entering, commit theft, or any other offence, he shall be punishable for any felony so committed, as well as for the burglary.” Pasc. Dig., art. 2371.
And again: “If any person shall, after entering a house in any of the modes spoken of in this chapter, commit the offence of theft, he shall be punished by confinement in the penitentiary not less than two years, nor more than seven *682years.” Pasc. Dig., art. 2369. Punishment for simple burglary, in entering a house not a dwelling-house, is by confinement in the penitentiary not less than two, nor more than five years. Pasc. Dig., art. 2366.
As will be seen, two years are added when the burglary is aggravated by the further commission of theft. But the theft, though making a compound statute offence, is subordinate to, and forms but a part of, the main crime, which is burglary. The question is, whether, though the party may be punished for the two offences combined, he can be convicted, in the same judgment, of two distinct offences, to wit, burglary and theft ?
We are led to suggest this question in consideration of the reasoning of our Supreme Court, in what appears to be a well-considered opinion, in the case of Shepherd v. The State, 42 Texas, 501. In that case the defendant was charged with burglary, and with theft after the burglarious entry. He was found guilty of burglary. Mr. Justice Devine, delivering the opinion, says: “The motion in arrest of judgment, with respect to the vague and uncertain character of the judgment, is answered by the clear and precise statement of the defendant’s guilt as set forth in the indictment; and the alleged joinder of two separate and distinct felonies in the same count is not shown by an examination of the Code and the decisions of our own and other courts on similar questions. The indictment on its face shows that it charges an unlawful and burglarious entry, as set forth in art. 724 of the Criminal Code, and his liability to punishment for both the burglary and theft charged, under arts. 734, 735; and the indictment charges the entry, the felonious intent to steal, and the theft, with all the precision relating to time as expressed in art. 737. The charge of theft is included as one of the degrees of burglary. Art. 631 of the Code of Criminal Procedure, subdivision 4, treating of the different degrees of offences, says: * Burglary, which includes every species of housebreaking and of theft *683from a house.’ There was no necessity, in this case, to charge an actual taking; the entry and intent would have been sufficient, but the charge as made is not open to objection. Mr. Bishop, in the second volume on Criminal Law, 117, treating of burglary with intent to commit a felony, and the commission of the felony after entry, says: ‘ The common method is to blend the two forms in one, and charge both an intent to do and an actual doing; and this blending has been held to be good. In The Commonwealth v. Tuck, 20 Pick. 360, the question was raised which is presented in this case, and the court said: ‘ So in burglary, where the indictment charges a breaking and entry with an intent to steal, and an actual stealing (which is the common form), the jury may acquit of the burglary and convict of the larceny, but cannot convict of the burglary and larceny as two distinct offences. The latter is merged in the former, and they constitute but one offence.’ And to the same effect is West v. The State, 35 Texas, 91; Wilcox v. The State, 31 Texas, 587.” 42 Texas, 503, 504.
Without deciding whether the verdict and judgment in the case at bar, when considered in the light of these authorities, are unwarranted, we have felt it due that we should call the attention of the court to them, for its consideration or another trial.
We are of opinion that defendant was entitled to a continuance for the witness Creary. In overruling the application as to this witness, the court says the motion was overruled “ because it does not appear from the record, nor is it shown by averment, that the testimony of said witness Creary is material; and be it further remembered that on the trial, Bonner, who testified as a witness, did not deny-the facts which it was proposed to prove by Creary.” Under the peculiar circumstances of this case, we think the proposed testimony was material. True, the witness Bonner did not deny what was expected to be proven; still, the witness Bonner stood in the attitude of a particeps *684•eriminis, who was trying to throw the burden of the crime upon the defendant by turning State’s evidence, whether any agreement to that effect, and as to his own immunity, had been made with the prosecution or not. That was the position he held with relation to the case; and, whatever may be said of his testimony and admissions, they should not be held binding upon the defendant, if it were in his power to show the same facts, or to contradict him, by evidence coming from a source not tainted with suspicion of corruption.
We are free to confess that, under the peculiar facts and circumstances as set forth in the statement of facts, we would also prefer to have the case further developed in the light of the additional testimony, which seems to be accessible.
Because the court erred in overruling the application for continuance as to the witness Creary, the judgment is reversed and the cause remanded.
Reversed and remanded.