
    FORD v. STATE.
    (No. 8107.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.
    Rehearing Denied May 7, 1924.)
    1. Criminal'law &wkey;>687(() — Court may admit evidence any time before argument.
    It is within discretion of court under Code Cr. Proc. 1911, art. 718, to permit evidence at any time before argument is concluded.
    2. Criminal law &wkey;>687(l) — Admission of state's testimony to prove venue, after resting, not abuse of discretion.
    Where state and defendant had rested, admission of state’s testimony to prove venue, previously omitted, was not an abuse of discretion.
    3. Criminal law <&wkey;l086(I4) — Bill of exceptions to refusal of affirmative charge held defective.
    A bill of exceptions, for refusal of affirmative charge for defendant, not showing that-charge was presented before the main charge, nor that exception reserved, was defective.
    On Motion for Rehearing.
    4. Intoxicating liquors <§=3236(11) — Evidence held to sustain conviction for selling.
    In a prosecution for selling liquor, evidence held to sustain conviction, notwithstanding discrepancy in dates of gale testified to.
    iSssiTor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal 'from District Court, Lamar County ; Ben H. Denton, Judge.
    Marion Ford was convicted for sale of intoxicating liquor, and he appeals.
    Affirmed.
    C. Alfred Martin, of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for- the sale of intoxicating liquor, with punishment assessed at confinement' in the penitentiary for one year. «

We see no necessity for setting out tlie evidence. It is amply sufficient to support the verdict. It is apparent to us, and must have been to the jury, that the prosecuting witness was testifying reluctantly and trying in every way possible to shield appellant, but, notwithstanding this, his evidence makes out a complete case.

No error was committed in overruling appellant’s application for continuance. It fails to show the slightest diligence.

Leo Burton was with prosecuting witness Stewart at the time he went to the home of appellant, made inquiry for and obtained the whisky. After using the witness Stewart the state rested its case, having omitted to prove venue. Appellant also rested. The sthte then called the witness Burton, whereupon the court announced that his evidence would be confined to proving venue. The district attorney asked the witness in what county it was that he and Stewart got the whisky, to which Burton replied that it was in Lamar county, Tex. Appellant interposed objection because both the state and appellant had rested their case. It is within the sound discretion of the court, under article 718, C. C. P., to permit evidence at any. time before argument is concluded where the ends of justice demand it. We observe no abuse of such discretion in the present instance.

Appellant requested the court to instruct the jury to return a verdict of not guilty. The bill bringing this matter forward for review might be dismissed with the statement that it fails to show that the charge was presented to' the court before the main charge was read to the jury, or to show that appellant reserved exception to the refusal of the charge (Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Crane v. State, 91 Tex. Cr. R. 304, 240 S. W. 920; Cecil v. State, 92 Tex. Cr. R. 359, 243 S. W. 988), but if it was in fact presented in a timely manner the court properly refused it.

No errors appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The date of the offense was laid in December, 1921'. Claude Stewart was named as the purchaser. He testified that he, in company with Leo Burton, got a quart of whisky for which he paid $2.25. They saw the appellant before obtaining the whisky. Responding to their inquiry about obtaining whisky, he said that he might tell them which way to go to get it. They went about 400 yards into the woods and waited. Some one called, and 'the appellant appeared at a point about 15 feet from Stewart and his companion. The witness then got the whisky from near a log and laid the money on the log.

It affirmatively appears that there was no-one else connected with the transaction save-the appellant, Stewart, and Burton. Stewart had known the appellant all his life.

Burton testified that he was with Stewart a part of the time when the whisky was obtained and that the transaction took place in Lamar county in December, 1922.

The jury was warranted, upon the entire record, in concluding that the transaction to which Burton and Stewart testified was the same, this notwithstanding the, apparent. discrepancy in the date.

The motion is overruled.  