
    STEPHENS v. STATE.
    (No. 10783.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    1. Criminal law <&wkey;603(7) — Continuance was properly denied in absence of absent witness’ affidavit that he would testify to facts stated in application.
    . Court properly overruled application for continuance, in absence of affidavit from absent witness that he would have testified to facts set out in application.
    2. Criminal law <&wkey;H84 — Judgment of guilty of possessing still, as well as manufacturing liquor, which was only count submitted, and definite sentence to two years in penitentiary, reformed (Vernon’s Ann. Code Cr. Proc. 1925, art. 847, note 14).
    Judgment of guilty of possessing still and mash, as well as of manufacturing intoxicating liquor, which was_ only count submitted, and sentence to penitentiary for two years, will be* reformed to adjudge defendant guilty only of latter offense and fix punishment at not less than one nor more than two years in penitentiary, under Vernon’s Ann. Code Cr. Proc. 1925, art. 847, note 14.
    Commissioners’ Decision.
    Appeal from District Court, Gregg County; P. O. Beard, Judge.
    Andrews Stephens was convicted of unlawfully manufacturing intoxicating liquor, and be appeals.
    Reformed, and affirmed as reformed.
    Campbell & Campbell, of Longview, for appellant.
    Sam. D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., botb of Austin, for the State.
   BETHEA, J.

The appellant was convicted of the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at two years in the penitentiary.

The record is void of bills of exception. There are no objections to the court’s charge. There are no special charges asked by the appellant and refused.

There is in the record an application for a continuance based on the absence of a witness. There is no affidavit from the absent witness showing that he would have testified, if present, to the facts set out in the application for continuance. The court very properly overruled the application.

We note from a reading of the judgment and sentence that the appellant was adjudged “guilty of the offense of manufacturing intoxicating liquor, and possessing a still and mash, as found by the jury, and that he be punished, as has been determined by the jury, by confinement in the penitentiary for two years.” The judgment and sentence will be reformed so that they will read that appellant be adjudged guilty of the offense of manufacturing intoxicating liquor, this being the only count submitted in the court’s charge, and that his punishment be fixed at confinement in the penitentiary for a period of time not less than one year nor more than two years. Article 847, note 14, Vernon’s Annotated Code of Criminal Procedure.

The facts are amply sufficient to support the verdict of the jury. The judgment, as thus reformed, is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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