
    ALLEN v. STATE.
    (No. 9882.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.
    Rehearing Denied March 24, 1926.)
    1. Criminal law <&wkey;9!7(2) — Refusal of new trial for refusal of continuance to secure witness was not error, where affidavit of witness shows he would not give testimony claimed.
    Refusal of new trial because of refusal of continuance to secure witness was not error, where affidavit of witness shows he would not give testimony accused claimed, as reversal is required only where the evidence convinces the appellate court that the testimony of the absent witness- would probably result in a verdict more favorable to the accused.
    2. Criminal law &wkey;>394.
    Contention, based on Code Cr. Proc. 1925, art. 727a, not in effect at time of trial, excluding evidence resulting from unlawful search, is not tenable.
    On Motion for Rehearing.
    3. Criminal law <&wkey;939(2) — Rule that, if testimony on trial shows absent testimony material, and probably true, new trial should be granted, though diligence was wanting, held not to apply, in view of slight diligence exercised by accused.
    Where indictment was returned in January, 1924, and the trial was had in June term, 1925, and the only showing of diligence on application for continuance to secure witnesses was that accused had made application for witnesses, rule that, if testimony on trial shows the absent testimony material and probably true, new trial should be granted, though diligence was wanting, did not apply.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    John Allen was convicted of unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    John A. Cook and J. F. Wilkinson, both of Mt. Pleasant, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., -of Tyler, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

At the time of his arrest the appellant and one Holcomb were riding in an automobile driven and owned by the latter. On the seat between the two there was one gallon of whis-ky, and three half-gallons were found in a suit case situated in another part of the ear. The automobile was traveling upon the public road. At the time of the arrest Holcomb said that he was driving a service car, and was taking the appellant to Pittsburg. Ae-cording to the appellant’s testimony, he was a party to a lawsuit, and had gone to Mt. Pleasant at the suggestion of his attorney to consult with a witness; that he went to see the witness in company with Williams and Smith in a Ford ear. After seeing the witness, the car was stopped on account of tire trouble, and, while waiting for its repair, Holcomb appeared and invited the appellant to ride with him to Daingerfield. A few moments later, and after he had ridden but a short distance in Holcomb’s car, the arrest took place. The arrest was made by Chapman, a city marshal, and Cato, a peace officer. According to his testimony, appellant, upon his arrest, said in the presence of the officers that the stuff belonged to Holcomb. He claimed in his testimony that the suit, case was opened by Cato with a key which was in a bunch with the one used in starting the car, and.that Holcomb admitted the ownership of the keys. He disclaimed any interest in the whisky or knowledge of its presence.

Chapman testified that the suit case was opened at the jail with keys gotten from the appellant. There was testimony that during the day before the arrést, and before appellant got in Holcomb’s car, the two were seen in company with each other, and that appellant got in the car and had a suit case with him. Appellant claimed that the suit case found in the car was unlocked at the jail by Cato with keys which belonged to Holcomb, and that a person by the name of Kelly saw this. Kelly was not used as a witness.

Appellant made a motion for a continuance to secure the testimony of Williams, Smith, and Cato. No legal diligence was used to secure the attendance of Smith and Williams. Appellant expected to prove by Cato that the bunch of keys, among which was that used in unlocking the suit case, was taken from the switch in the car which belonged to Holcomb, and that at the time of the arrest Holcomb claimed both the whisky and the car, and stated in the presence of Cato and Chapman that the whisky belonged to him.

Attached to the bill of exceptions which was prepared by the court was the affidavit of Cato to the effect that he was present at the time of the arrest of the appellant and Holcomb; that Holcomb did not state that the whisky belonged to him; that, after the arrest, Cato rode to the jail with Holcomb; and that appellant rode with Chapman in the latter’s car; that they were searched at the jail, and the key which unlocked the suit case containing the whisky was, according to the best recollection of the witness, taken from the appellant; that the witness did not get the key from the key ring in Holcomb’s car; and that the key from that ring was not used in unlocking the suit case. In view of the affidavit of the absent witness Cato showing that he would not give the testimony set out in the motion for a continuance, there was no error'in refusing to grant a new trial. See Shaw v. State, 22 S. W. 588, 32 Ter. Or. 155, and numerous other cases collated in Branch’s Ann. Tex. P. C. § 337. The law does not demand or authorize a reversal of the judgment in every case in which an application for a continuance showing diligence and material testimony is denied. The law demands a reversal only in cases in which the evidence adduced upon the trial is such as to impress the appellate court with the conviction that it was reasonably probable that the testimony of the absent witness would result in a verdict more favorable to the accused. Covey v. State, 5 S. W. 283, 23 Tex. App. 391, and other' cases collated in Branch’s Ann. Tex. P. C. § 319, subd. 2.

Obviously, when, as in the present case, it appears by the affidavit of the absent witness that he would not give the testimony, this court would not be warranted in holding that in refusing to grant a new trial the trial court abused its discretion. At the time of the trial the recent law excluding evidence resulting from an unlawful search was not in effect. See article 727a, O. O. P. 1925. The contention based upon that article is not tenable.

Failing to find any error warranting a reversal, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant admits that sufficient diligence to secure the attendance of Williams and Smith was not. shown, but urges that a new trial should have been granted by the learned trial judge upon the proposition that, if the testimony adduced on the trial showed the absent testimony to be material and probably . true, a new trial should have been granted, although diligence was wanting. Section 319, Branch’s Ann. Tex. P. C., and authorities there collated. We thinlr under the present record the application of this principle is not called for. The indictment was returned in January, 1924. The case was not tried until the June term, 1925. Appellant calls his application for continuance his “first motion for continuance.” In the bill bringing this matter forward for review the court says:

“The docket shows that this case has been previously continued by the defendant twice, but no formal application was filed.”

So it would appear that, -while the application for continuance may have been the first formal application, two continuances had already been secured by appellant; therefore this should be regarded as a subsequent application. The application itself shows no diligence, whatever to secure the witnesses Smith and Williams. The only recital found therein which indicates any effort to secure their attendance is found in the statement following: “The witnesses Tom Smith and Henry Williams, for which the defendant has made application,” will testify, etc. It will be observed there is no statement as to when or to whom application was made, or whether process was ever issued thereon, and, if so, what became of the process. It does appear from the bill of exception that on th'e 14th of January, 1924, application was made to the clerk of the court requesting the issuance of process for Smith and Williams, and asking that it be made returnable on the 4th of February, 1924. The bill further shows that process was issued for 'Williams returnable to the January term, 1924, with a notation thereon that the witness was “not located.’-’ Neither the application for continuance nor the bill shows that process was ever issued for Smith. 'Neither does it appear that additional process was ever asked for Williams, though the former process showed he had not been served.

Under these circumstances the court does not feel called upon to make application of the rule invoked by appellant. If he deemed the testimony of these two witnesses as important as is reflected by his insistence now, it appears he should at least have used some diligence to secure their attendance.

The motion for rehearing is overruled. 
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