¶1Sidney Gardner and three other men were indicted for feloniously breaking and entering a box car in the nighttime with intent to steal, and for the larceny of five sacks of rice, of the value of $25, then and there found in said box car.
¶2The four defendants were tried, and the jury found David Alex not guilty, and Sidney Gardner, Buddy Lubin, and Issie Stokes guilty as charged. Sidney Gardner was sentenced to imprisonment at hard labor in the state penitentiary for a period of seven years, Lubin (alias Robertson) to like imprisonment for a period of five years, and Issie Stokes to like imprisonment for a period of four months. Sidney Gardner has appealed, • and assigns as error the overruling of his motion for a new trial.
¶3The grounds of the motion are substantially as follows:
¶4That the accused was not represented by counsel when he was tried with the other defendants.
¶5That two of the defendants were represented by counsel and testified in the case, that after their testimony had been given the accused expressed a wish to testify, and that said counsel consulted with him and without his permission refused to let him testify.
¶6That the accused was not represented by counsel and was not allowed to testify in his own behalf, to all which he was entitled to under the law.
¶7That the accused, if allowed to testify, can establish his innocence.
¶8That the accused is an ignorant man, and his rights were not explained to him by the court.
¶9That the accused had no defense made for him, nor was he protected and allowed to make a defense for himself.
¶10That the accused was without means, was in jail, and that it was not until the day after his conviction that his sister came from Texas and employed counsel for him.
¶11The trial judge states that the four defendants were arraigned on January 9, 1909, and the trial court fixed for the 19th of the-same month; that, Gardner and Lubin being without counsel and unable to employ one, the court appointed Hon. T. D. Foster to defend them; that Mr. Foster accepted" the appointment and ably defended the accused, making a defense for each one of them in his argument before the jury; that the proof against Gardner, consisting of his voluntary confessions made at different times to several persons, might have been the reason for his not testifying, but that was a matter left entirely with him and his counsel; that since his conviction Gardner has employed the counsel, who made the motion for a new trial; that Gardner is in-error in the allegations set out in the motion which are not supported by the facts and minutes of the court.
¶12The minutes of January 19, 1909, show that T. Don Foster, Esq., represented Sidney Gardner and Robertson (alias Lubin), “being appointed by the court” for that purpose. The minutes of January 20, 1909, show the presence of the four defendants- and “their counsel T. Don Foster, Esq.,” and that “after hearing the testimony of the witnesses sworn for the defendants and the arguments of counsel and the charge of the-presiding judge the jury retired,” and subsequently returned into court and rendered their verdict.
¶13As the record shows that the accused was represented by counsel appointed by the-court, there is no merit in the motion for a new trial. On the facts of the case, as staged by the trial judge, there was no miscar-riage of justice.
¶14Judgment affirmed.