
    NORRIS v. STATE.
    (No. 9809.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Criminal law <§=^598(2)— Decree of diligence, in procuring' testimony by Insane defendant, as ground for continuance, stated.
    As to applications for continuance, the law does not require of one who is insane the same degree of diligence in procuring testimony which would be demanded of one without mental infirmities.
    2. Criminal law <&wkey;>958(6) — Denial of motion for new trial held not abuse of discretion.
    In prosecution for possession of liquor for purpose of sale, where accused was sane at time of commission and at trial, and knew distinction between right and wrong, denial of motion for new .trial, supported only by testimony and affidavit of accused, held not abuse of discretion.
    3. Criminal law &wkey;>608 — Denial of motion for continuance held not abuse of discretion.
    In prosecution for possession of liquor for purpose of sale, where accused was sane at time of commission and at trial, and could distinguish between right and wrong, the denial of motion for continuance, to show insanity, supported only by testimony and affidavit of accused, was held not abuse of discretion.
    4. Criminal law &wkey;586, 911, 1151, 1156(1)— Motions for new trial and for continuance held addressed to discretion of court, not reviewable save for abuse.
    Motions for new trial and for continuance are addressed to discretion of court, and, unless an abuse of discretion is shown, judgment cannot be set aside on appeal. •
    Appeal from District Court, Liberty County; J. M. Combs, Judge.
    Walter Norris was convicted of unlawful possession of intoxicating liquor for purpose of sale, and appeals.
    Affirmed.
    Mabry E. Cain, of Liberty, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tbe State.
   MORROW, P. J.

Tbe dffense is tbe unlawful possession of intoxicating liquor for tbe purpose of sale; punishment fixed at confinement in tbe penitentiary for one year.

According to tbe state’s witness Barnhill, be bad a conversation with the appellant at a “barbecue joint.” Tbe witness was an officer, though this was not known to tbe appellant. According to bis testimony, Barnhill approached a negro at the “barbecue joint” and asked him for some whisky. Tbe negro told him that there was a white man that would sell him some. At that time tbe appellant appeared upon tbe scene. In response to tbe witness’ request for whisky, be inquired bow much was desired, and was told that be wanted a pint or a half pint. Appellant then went into tbe woods: He soon returned with a bottle of whisky, • which be priced at $3, whereupon tbe arrest took place. After putting tbe appellant in jail, tbe witness went back into tbe woods in tbe direction from which tbe appellant bad brought the whisky, and there found a jug of whisky.

Appellant sought a continuance or postponement of bis case, in which be averred that be bad been in jail since bis arrest, which took place in March previous to tbe trial in June; that be was of unsound mind; that be did not .know why bis attorney, Mr. William McMurray, bad not procured testimony to that effect; that bis home was in Mereville, La.; that be bad been discharged from tbe United States army in April, 1918, because bis mind was unsound; that be was unfit for army service; that be bad employed William McMurray of tbe Liberty county bar to represent him; that for some unknown cause be was absent; that appellant understood that tbe absence was due to tbe fact that McMurray was trying a case in another county. The application shows that the appellant was assisted upon tbe trial of his case by W. T. Norman, an attorney of reputation and ability, but that it was not possible, for Norman to secure tbe testimony desired; that be believed that at the next term of court be could secure tbe testimony of Captain J. O. Dolby, an officer in the army under whom he served, to tbe effect that appellant was! mentally defective a great part of the timq, and did not know right from wrong. Tbe motion is verified by tbe affidavit of tbe appeilant, as is- also tbe motion for 'a new trial, based upon tbe same ground. Neither tbe application for a continuance nor tbe motion for new trial was otherwise supported.

Appellant testified upon tbe'trial that his discharge from the army recited that be was mentally disqualified for army service; that since lie was discharged he has been rational at times, and at other times not so. He said that he was working for one Jim Abercom-bie; that, because of an injury to his boots, he got a boy to work in his place, and started to town to have them repaired; that on his way he stopped at a “barbecue joint” for a short time; that while there, some one said, “There is an old fellow been drunk and sick and needs a drink.” Appellant said, “If he needs a drink, I will give him a drink.” When appellant went around in front of the house, Barnhill said, “I am a team boss out here; I have been drunk and sick, and I want a drink.” Appellant said, “All right, I will give you a drink.” According to his testimony, he then went into the woods, where he had a quart bottle which he had kept there for 10 days or more. It was partly full of whisky. When he offered it to Barnhill, he was placed under arrest. Appellant denied ever having sold any whisky or having offered it for sale. He said that while in the army he was affected with blood poison and had an honorable discharge. He disclaimed the ownership of the other whisky which was found by the officer in the woods.

Touching his attorney, appellant said that he had employed Judge McMurray; that he did not know why he was absent, though he had been told on the day of the trial that Mc-Murray was trying a case in another court. Appellant said :

“I have had witnesses summoned in this case. I made application for them. I gave the names to Judge McMurray. I do not know whether they have been summoned or not; I could not say. * * * I never spoke one word to Judge McMurray. I never seen him but one time. One time he come to the jail, but I never spoke a word to him, not a word.”

Appellant said that, at the time Barnhill procured the whisky from him, his mind was all right; that it was in good condition at the time of the trial; that the last spell had been 6 months prior thereto.

It is to be noted that the appellant had been working in the community; that he had been in jail for some time; that the theory of insanity is suggested by his testimony alone. The fact that he had employed an attorney is not otherwise verified. The motion for a continuance is manifestly lacking in the legal requisites. Appellant was represented upon the trial by a capable attorney. The law does not demand one who is insane, or perhaps where the issue of insanity was cogently raised upon the trial, the same degree of diligence in procuring testimony which would be demanded of one without such infirmity. Branch’s Ann. Tex. P. C. §§ 33 and 34; Schuessler v. State, 19 Tex. App. 472. In the absence of any testimony, save that of the appellant, supporting the theory of insanity, and in view of the fact that his own testimony shows that, at the time of the transaction he was not insane, but was conscious of right and wrong, and was so at the time of the trial, we do not feel authorized to hold that the learned trial judge, in overruling the motion for a continuance, or in denying the motion for a new trial, abused the discretion that the law vested in him. In the absence of such abuse, it is not permissible for this court to set aside the judgment. Walker v. State, 13 Tex. App. 619, 44 Am. Rep. 716, note; Johnson v. State, 84 Tex. Cr. R. 567, 208 S. W. 928; Shirley v. State, 37 Tex. Cr. R. 478, 36 S. W. 267; Vernon’s Tex. Crim. Stat. vol. 2, p. 305.

An affirmance of the judgment is therefore ordered. 
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