
    BYRD v. STATE.
    (No. 6191.)
    (Court of Criminal Appeals of Texas.
    May 25, 1921.)
    
    1. Criminal law <§=>598(2) — Showing of diligence held sufficient to Justify continuance for absence of witnesses.
    In a prosecution for unlawfully selling intoxicating liquor, where a continuance because of the absence of defendant’s wife, was asked, a showing that the wife had been duly subpoenaed, but was not able to appear because of illness, as certified to by a doctor, held sufficient as to diligence.
    2. Criminal law <§=>598 (2) — Showing of diligence held insufficient to justify continuance for absence of witnesses.
    In a prosecution for unlawfully selling intoxicating liquor, where a continuance was asked for the absence of a witness, diligence did not sufficiently appear upon a mere showing that a subpoena had been asked but had not been served.
    3. Criminal law <§=3595(4) — Evidence of absent witnesses held so material as to make refusal of continuance error.
    In a prosecution for unlawfully selling intoxicating liquor, evidence of absent witnesses held material, so that it was error to refuse a continuance on the ground of the absence of such witnesses.
    4. Criminal law <§=>596(1) — Rule as to cumulative testimony not strictly applied to first applications for continuance.
    The rule as to cumulative testimony is not to be applied strictly to first applications for continuance.
    5. Criminal law <§=>419, 420(1) — Evidence held inadmissible, as hearsay.
    In a prosecution for unlawfully selling intoxicating liquors, evidence of a witness that he was present when the person to whom the liq-nor was alleged to have been sold pointed out defendant as the man who sold him the liquor held' objectionable, as hearsay.
    6. Criminal law <§=>I056(I) — Failure to charge as fe accomplices held not reversible error.
    In a prosecution for unlawfully selling intoxicating liquor, where no exception was taken to the action of the trial court in failing to charge as to accomplices, and no special charge was asked presenting such issue, such failure was not reversible error.
    Appeál from District Court, Red ' River County; Ben H. Denton, Judge.
    John Byrd was convicted of selling intoxicating liquor, in violation of the Dean Law, and he appeals.
    Reversed.
    Prentice Wilson, of Clarksville, and B. B. Sturgeon, of Paris, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Red River county of selling intoxicating liquor, in violation of what is known as the Dean Law (Acts Second Called Session, Thirty-Sixth Legislature, p. 228).

Appellant applied for a continuance because of the absence of his wife and Mrs. Black. Appellant’s wife had been duly subpoenaed but was not able to appear at the trial because of illness, as certified to by a doctor. We are of opinion that sufficient diligence was shown as to this .witness. A subpoena had been asked for Mrs. Black, who lived in Titus county, and it did not appear that said process had ever been issued or served upon her, except by the statement of appellant to that effect in his application for a continuance, and this is not sufficient. The facts must be shown. Branch’s Ann. P. C. § 315.

The alleged purchaser of the intoxicating liquor was Royce Wilson, who testified that he and one Hargrove drove with appellant in a car 15 miles out from Clarksville to the home of appellant on the morning of Thursday, September 16, 1920, and there procured certain whisky, a part of which was given by appellant to Wilson in payment for his services and the use of his car in making said trip. This witness testified that they left Clarksville about 7 or 8 o’clock in the morning, and returned before noon, and that witness was arrested for his connection with said liquor before noon also. Wilson was corroborated in his story by Hargrove. Appellant denied having gone to his home on the occasion in question, with said men, and denied knowing Wilson at all. He further stated that on the morning of Thursday, September 16, 1920, he left his home, came 15 miles to Clarksville in a buggy, and there got with two men, Smiley and White, and with them went back in a car to his home to look at some cattle, reaching his place about 10 o’clock and remaining around the premises until about 2 o’clock, about which time he left and went back to' Clarksville in the car with said two named men, and that he was not with Wilson or Hargrove at all during said day, or at any other time. By his wife and Mrs. Black, who is appellant’s daughter, he expected to prove that he spent the night of September 15, 1920, at his said home, and on the morning of Thursday, September 16th, he went in a buggy at about 7 o’clock to Clarksville, and some 3 hours later returned home in a car with Smiley and-White, and remained about the place until in the neighborhood of 2 o’clock; that no other car came to said house on said day, and that Royce Wilson was not there and did not come there in a car at all.

There can be no question but that this testimony was material, and in our opinion the continuance should have been grant■ed. The evidence does not come under the head of cumulative testimony, nor is the rule as to cumulative testimony to be applied strictly to first applications for continuance. Buck Smiley, one of the witnesses as to the matters of defense above set out, admitted on cross-examination that he was under indictment himself for selling liquor, which fact made stronger appellant’s need for the testimony of the two women. Diligence as to the matter of Mrs. Byrd’s testimony was shown, as abov.e stated; and while it does not appear as to Mrs. Black, still it is shown from the record that she was sick at the time of trial, and that diligence would not have availed to procure her testimony.

In view of the reversal of this case made necessary by the refusal of said continuance, we further observe that the evidence of the witness McKinney, to the effect that he was present when Royce Wilson pointed out appellant as the man who sold him liquor, would be objectionable as hearsay.

No exception was taken to the action of the trial court in failing to charge that Wilson was an accomplice, and no special charge was asked presenting this issue; hence the action of the trial court in failing to charge on such testimony would not be reversible error (Branch’s Ann. P. C. § 716), but if excepted to, or such charge be requested and refused, error would appear.

For the error in refusing the continuance, a reversal is made necessary, and same is ordered. 
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