
    DE LANEY v. STATE.
    (No. 8486.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.
    Rehearing Granted June 27, 1924.)
    1. Criminal law <§=3597(3)— Order denying motion for continuance for absent witnesses held not erroneous.
    In a prosecution for the unlawful manufacture of intoxicating liquors, where the diligence to secure attendance of witnesses was manifestly insufficient, and where a quantity of whisky and apparatus for making it were found on defendant’s premises, and accused in his written confession admitted that' he made whisky on several recent occasions with such apparatus, and where abuse of the court’s discretion was not shown, an order refusing’ a motion for continuance for absent witnesses held not erroneous.
    2. Criminal law <@=3530 — Voluntary written confession admissible.
    A written confession, prepared in accord with Code Cr. Proe. art. 810, and voluntarily made, is admissible in evidence.
    3. Criminal law <§=33,94 — Testimony of officers as to matters found on premises of accused not inadmissible because there was no search warrant or search warrant not effective.
    In a prosecution for the unlawful manufacture of intoxicating liquor, the testimony of officers with reference to matters found on the premises of accused is not inadmissible because there was no search warrant or because a search warrant was not effective.
    4. Criminal law <@=814(17)—Refusal to charge on circumstantial evidence, where written confession of defendant admitted, held not erroneous.
    In a criminal prosecution, where the written admission of defendant was received in evidence, the refusal to charge on circumstantial evidence was not erroneous.
    5. Criminal law <@=772(6)—Refusal to charge that if others had possession of or owned still accused should be acquitted not erroneous, when conviction justified.
    In a prosecution for the unlawful manufacture of intoxicating liquor, where the written confession of defendant, together wijh other testimony, so connected him with the transaction as to justify conviction^ a refusal to charge that if others had possession of or owned the still an acquittal should result was not erroneous.
    On Motion for Rehearing.
    6. Criminal law <@=>1023(10)—Entry of sentence essential to give appellate court jurisdiction on appeal from conviction of felony less than capital.
    In a criminal case, the entry of the sentence is essential to give the appellate court jurisdiction on appeal from conviction of a felony, less than capital, under Vernon’s Ann. Code Cr. Proc. 1916, art. 894.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    Will De Laney was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Appeal dismissed.
    Callaway, Short & Callaway, of Dallas, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years. No brief is furnished.

We fail to observe any defect in the indictment rendering erroneous the refusal of the motion to quash. The indictment charged that appellant ’ unlawfully manufactured “spirituous, vinous, and intoxicating liquor, and malt liquor and medicated bitters capable of producing intoxication.” See Travinio v. State, 92 Tex. Cr. R. 142, 242 S. W. 242, on motion for rehearing.

The indictment was filed in August. The case was tried on the 27th of October. It was first set for September 20th and postponed upon the motion of the appellant. In the second application, a continuance was sought on account of the absence of the appellant’s wife and brother-in-law, Lee Caldwell. Subpoena-was issued on the 13th day of October. It had not been served, though the sheriff’s return shows that he traveled many miles in an effort to execute it. The court, in qualifying the bill, says that Caldwell was out -of the county, but the length of his absence is not revealed. There was a doctor’s certificate showing the sickness of the appellant’s wife. However, no affidavit from her was produced either at the time of thé application or upon the motion for rehearing. No explanation is given of -the delay in issuing the subpomh, which, according to the record, was issued more than six weeks after the filing of the indictment.

Officers found upon the premises of the appellant a quantity of whisky and apparatus for making it, which equipment was complete and showed evidence of recent use. Appellant, in his written confession, admitted that he had made whisky on several recent occasions with the apparatus which he had ordered from Chicago. He introduced no testimony save that showing that as a law-abiding citizen, he bore a good reputation. His wife, according to the averments .in the application, would have testified that the whis-ky and still did not belong to him. The diligence to secure the attendance of the witnesses was manifestly' insufficient. The merits of the application are not such as would warrant this court in holding that the learned trial judge abused his disqretion in refusing to continue because of the testimony of the absent witnesses. Taking note of the other facts in the case, they are not such as rendered it probable that, with the witnesses present, there would have been a different result. .

The record contains two bills of exception complaining of the introduction of the written confession. We observe no fault in the document or in the predicate for its introduction. 'It is apparently prepared in accord with article 810, C. C. P., and the bills as qualified, as well as the proof, show that it was voluntarily made.

There are seven bills of exception, all of which have been examined. In some of them is advanced the proposition that, because there was no search warrant or effective search warrant, the testimony of the officers with reference to the matters found on the premises should be excluded. This question has been decided adversely to the appellant’s contention in Welchek’s Case, 93 Tex. Cr. R. 271. Some of the bills relate to the refusal of the court to give peremptory in- • structions. They are without merit.

There was no error in refusing to charge upon circumstantial evidence. The confessison of the appellant apparently took the case out of the domain of circumstantial evidence.

There was no error' in refusing to charge that, if others had possession of or owned the still, an acquittal should result. Whatever interest they may have had in, it, appellant’s confession so connected him with the transaction, as did the other testimony, as to justify the verdict rendered.

The bill complaining of the argument hears no approval of the trial judge.

Finding nio error in the record, the judg-ment is affirmed.

On Rehearing.

In the motion for rehearing our attention is drawn to the absence from the record of the sentence of the appellant. Attached to the motion is the affidavit of the clerk of the court .to the effect that no senr tence was entered in the case. The sentence is the final judgment, and its entry is essential to give jurisdiction to this court on appeal from the conviction of a felony less than capital. See article 894, C. C. P.; Vernon's Tex. Crim. Stat. vol. 2, p. 870, and cases collated.

The motion for rehearing is granted, the affirmance heretofore entered is set aside, and the appeal ordered dismissed. 
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