
    PAGE v. STATE.
    (No. 7603.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied May 30, 1923.)
    1. Criminal law <<©=5917(2)— Denying new trial based on application for continuance held not an abuse of discretion.
    Where the averment in a motion to continue was that an absent witness would testify that the only act of defendant, in connection with the possession of liquor, knowing that the whisky was to be sold at a certain time, and that he had nothing to do with the transaction, no affidavit of the absent witness being submitted, there was, in view of evidence, no abuse of discretion in overruling a motion for new trial based on the application for continuance.
    On Rehearing.
    2. Criminal law <©=>961 — In application for new trial probable truth of facts in affidavit' of absent witness not for court’s decision.
    Where absent witness makes affidavit that he would have sworn to facts stated in application for continuance, as provided by Code Cr. Proe. 1911, art. 608, subd. 6, and such affidavit is attached to the motion for new trial, the question of probable truth of such testimony is not for the trial court’s decision.
    3. Criminal law ©=1091 (I I) — Bill of exceptions in question and answer form not proper.
    Where a bill of exceptions is in question and answer form without apparent reason therefor, it will not be considered. Acts 32d Leg. (1911) c. 119, § 14 (Yernon’s Ann. Code Cr. Proe. 1916, art. 846).
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    ' J. D. Page was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    
      Basldn, Dodge & Beene, of Port Worth, for appellant.
    < K. G. Storey, Asst. Atty. Gen., for the Stat^.
   MORROW, P. J.

Conviction is for the unlawful possession of intoxicating liquor. Punishment fixed at confinement in the penitentiary for one year.

'Shropshire, a witness for the state, testified that on the afternoon of the day upon which the appellant was arrested he (Shropshire) visited the home of appellant, which seems t'o have been- some distance from Port Worth, though in the same county. Shropshire’s ■ mission was to induce appellant to 'bring the witness some whisky. This appellant refused. The witness then suggested that he would get “his man” to come back that night if some whisky could be obtained. Appellant made no promise to furnish it. Later, however, on the same evening, Shropshire and the witness Concrite went to the home of the appellant, reaching there about 9:30 o’clock at night. Appellant and his wife had retired for the night. On the premises was a young man named Bedford. Appellant was told that there was a man who wanted five gallons of whisky. The price was discussed and agreed upon, and appellant instructed Shropshire and Concrite to drive down a certain road, which he described and pointed out. According to instructions, the witnesses waited for the appellant at a point about a quarter of a mile from his place of abode. He appeared in an automobile in which there were two jugs of whis-ky. It was sampled by Concrite. The other man called Bedford was also present with the appellant. Bedford had a shotgun. Con-crite counted the money and then handed the agreed price of the whisky to Shropshire to count. Concrite then got possession of Bedford’s gun and put the parties under arrest. Concrite was a detective, and Shropshire, according to the testimony, was acting with him in this transaction.

Concrite described his part in the transaction in accord with the testimony of Shropshire. The witness Rhodes, it seems, was also near by, and, together with the other officers, assisted in making the arrest, or appeared soon after Concrite had done so. When appellant was arrested, he said: “Well, you have got me right this time, boys.”

McCauley, a witness for the appellant, testified that he saw Shropshire on one occasion, about 4:30 in the afternoon, come to the camp at which appellant lived; that', appellant and his wife were present. Shropshire had two jugs in the car and requested appellant to bring them to town, but appellant declined to do so, stating that he would not risk it. Shropshire then told appellant that he would take the whisky and hide it where appellant and his wife would know where to find it. They took the whisky and went in a certain direction, though the witness did not know what they did with 'it. He knew nothing further about the matter

The wife of the appellant was not present at the trial. She had been duly subpoenaed, but was absent on account of sickness. According to the. averment in the motion to continue, she would have testified that Shropshire came to the home of herself and husband with five gallons of whisky in his possession, which he said he had sold to Con-crite, and which he asked appellant to deliver at Port Worth. Upon appellant’s declining to do so, Shropshire said that he would bring a man out that night, and to deliver it to him and receive the money therefor; “that Shropshire came out that night, bringing a man with him, to which he delivered the whisky and received pay thereforthat the only part or act of appellant, Page, in the matter was knowing that the same was to be done; that he had no part in the whis-ky and in no wise had anything to do with the transaction between the parties.

The trial took place on September 6th. The motion for new trial was overruled on September 11th. The motion is not supported by any affidavit of the absent witness. She resided in the county and was the wife of the appellant. No explanation of the absence of such affidavit is given.

We are of opinion that, considering the evidence upon the. trial and the entire record, the action of the court in overruling the motion for new trial, based upon the application for a continuance, was not without warrant. Primarily it was the duty of the trial court to pass upon the probable truth and effect of. the absent testimony. An abuse of the discretion vested in the trial court is not' revealed.

The judgment is affirmed.

On Rehearing.

HAWKINS, J.

The correctness of our opinion is challenged wherein we stated that the record reveals no abuse of the discretion lodged in the trial court in passing upon motion for new trial based upon denying a continuance for absent testimony. In determining this question the trial court and this court must look to the entire record to determine the probable truth and effect of the purported absent evidence. Article 608, subd. 6, C. C. P.; Grayson v. State, 91 Tex. Cr. R. 137, 236 S. W. 1110. If, however, the absent witness make affidavit that he or she would have sworn to the facts stated in the application,' and such affidavit' be attached to the motion for new trial, the question of the probable truth of such testimony is no longer one for the decision of the trial court. White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745, and authorities therein cited. No affidavit of the absent witness being attached in the instant case, we must be governed by the first rule announced, and, considering the .entire evidence in the record, we are confirmed in our opinion that the trial court was not in error.

Complaint is also made that we failed to consider the alleged error presented in his third bill of exception. It was not' overlooked, but was not considered because the bill is in questions and answers without any apparent reason therefor. See Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029, in which many authorities are cited. Chapter 119, § 14, Acts 32d Deg. (Vernon’s Ann. Code Cr. Proc. 1916, art. 846).

All other matters called to our attention in the motion for rehearing were considered upon the original submission, though some of them were not discussed, but we were of opinion no error was shown.'

The motion for rehearing is overruled.  