
    KRENEK v. STATE.
    (No. 8989.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Jan. 13, 1926.
    Second Motion for Rehearing Denied April 26, 1926.)
    1. Criminal law &wkey;>1167(2) — Refusal to require state to elect count in liquor prosecution held not error where verdict was returned on second count.
    -Where verdict in prosecution for manufacturing intoxicating liquor was returned on second count of indictment, there was no error in refusing to require state to elect on which count it would rely for conviction.
    On Second Motion for Rehearing.
    2. Criminal law <&wkey;614(3) — Delay of over a month in having subpoena issued for witness, who left town three days after notice to accused of date of trial, held not lack of diligence, and defendant was entitled to second continuance, in order to secure his testimony.
    Delay of over a month in having subpoena issued for witness, yrim left town three days after notice to accused of date of trial, held not lack of diligence, and defendant was entitled to second continuance, in order to secure his testimony, since taking of deposition in such case is not authorized, in view of Yernon’s Ann. Code Cr. Proe. 1916, art. 818.
    <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Milam County; John Watson, Judge.
    Albert Krenek was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded. ,
    De Witt Bowner and W. W. Hair, both of Temple, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted, tried, and convicted in the district court of Milam county for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at 12 months’ confinement in the penitentiary.

This appeal is predicated upon bills of exceptions 2, 3, and 4. Appellant complains of the action of the trial court in refusing his application to postpone his trial for the testimony of Dr. W. R. Newton. The record discloses that Dr. Newton was resident citizen of Milam county, had been for many years, but was in Chicago temporarily taking lectures, that four of appellant’s children were suffering with whooping cough, and that he consulted said witness, Dr. Newton, and was advised by him to get whisky for them, or that whisky would be good for them, and, after some effort to buy whisky, in which he failed, he was making or attempting to make intoxicating liquor when the officers arrested him. The application for postponement, and contest by the state show that the indictment was filed January 9, 1924, and on January 11th following, the case was set for trial on February 20, 1924, and, by agreement between counsel for state and defendant, counsel for defendant was notified of the date for trial on 11th of January, 1924, and said counsel for defendant had subpoena issued for said witness Dr. Newton of January 14, 1924, which was not executed because said witness on said date had left home for Chicago. When this case was called for trial on February 20,1924, a countinuance was granted to defendant for the -want of the testimony of said witness Newton. The case was called again for trial on March 20th, and appellant made said application for a postponement of said trial to obtain the said testimony of said witness Dr. Newton, which alleged from information of his wife that he was supposed to have returned a week prior to March 26, 1924, and was expected now to return home about April 10, 1924, to which time appellant was seeking to ■ have said trial postponed. The record further discloses that, subsequent to the date of consulting Dr. Newton relative to obtaining whisky, some time thereafte'r Dr. Hubert was called to attend said children and prescribed whisky for them.

The state’s contest to said postponement shows that the trial court in grañting the first application for this witness admonished appellant’s counsel to take his depositions, and we presume that the court refused to postpone same because of a failure to do so. The statute does not authorize the taking of depositions of resident witnesses temporarily out of the state. Vernon’s C. C. P. art. 818. In the case of Mooney v. State, 100 Tex. Cr. R. 344, 273 S. W. 257, and cases therein cited, this court held that the appellant was entitled to the testimony of a physician to show he prescribed and advised whisky for him. After a careful consideration of this bill, we have concluded the postponement should have been granted, or a new trial awarded to appellant, in view of the testimony adduced upon the trial of this case, showing the materiality of the testimony of Dr. Newton.

In bill of exception No. 3, complaint is made to the refusal of the court to instruct a verdict of acquittal. We are unable to agree to the contention made by counsel in this particular.

Appellant complains in bill 4 on account of the court refusing his motion to require the state to elect upon which of the two counts in the indictment it would rely for conviction. There is no merit in this contention, and there could not possibly be any error .in this instance, as the verdict was returned on the second count.

For the error above mentioned, we are • forced to hold that this case should be reversed. Reversed and remanded.

On State’s Motion for Rehearing.

The state has filed a motion for rehearing in this case in which our attention is called to our statement in the original opinion, wherein we stated that the subpoena for the absent witness, Dr. Newton, was issued “on January 14, 1924,” when in truth and in fact no process was issued for said witness until February 14, 1924. Upon further examination of the record, we find that we were in error in making said statement that said process was issued on January 14, 1924, and were misled by the state’s contest to said application for a continuance and the following paragraph, viz.:

“The state further shows that said subpoena, issued by the defendant for said absent witness on the 14th day of January, 1924, and mentioned in said application, has been corrected by the sheriff, and shows that said witness was not summoned for the reason that at said time he was not in said Milam county, Tex.”

This part of said record evidently was an error, as we find in different places of the record where it is stated that said process for said witness was not issued until February 14, 1924, and hence we were in error in our former opinion in holding the appellant was diligent in seeking to obtain said testimony of said witness, and basing our contention in said opinion upon the assumption that there were only three days intervening from the date that the appellant was notified of the sitting of the case, to wit, January 11, to January 14, before applying for process, when in truth and in fact the record discloses about 33 days before process was requested or issued, and, this being true, in our judgment would show no diligence upon the part of the appellant to secure service on said witness. The record further discloses that the witness left Cameron, his home, for Chicago, Ill., on the day the process seems to have been issued. The trial court, however, granted the first continuance made for this witness, and stated to the attorneys representing the appellant that they could take the deposition of said witness and have same ready when the case was called for trial again, if there was any question about his being present. This statement appears to have been made in the presence of the county attorney representing the state, and no objection was urged thereto. As stated, in our former opinion there is no law authorizing the taking of depositions of a resident citizen when temporarily absent, but, in view of the statement of the court, we take it that, if an effort had been made to take said depositions, accompanied with proper diligence, and the state had interposed an objection thereto, on the grounds that there was no law provided for such action, the court would in all probability have permitted the introduction of the depositions or granted a postponement to obtain said testimony of said, witness. In any event, the appellant would have been in much-better position to have sought a postponement under such circumstances. However, under the record as presented, there is no diligence shown in the first instance to have said witness subpoenaed, which could have been secured by .ordinary effort upon the part of appellant, and no diligence shown after the case was continued the first time to secure the deposition of said witness, and we are forced to the conclusion that there is no reversible error shown in the action of the court in overruling the second application of the appellant for said testimony. Boxley v. State, 100 Tex. Cr. R. 334, 273 S. W. 589.

Therefore the state’s motion for rehearing is granted, the judgment reversing and remanding this case is set aside, and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has béen examined by the judges of the Court of Criminal Appeals, and approved by. the court.

On Motion for Rehearing.

MORROW, P. J.

As we understand the record, appellant was indicted on January 9, 1924, and his case set for trial February 20th. Of this he became aware on January 11th. When the case was called on February 20th, it was, upon his application, because of the absence of the witness, Dr. W. R. Newton, continued and reset for the 26th of March. It appears from the record that Dr. Newton was -a resident physician .of the county; that he had not been subpoenaed; that he was temporarily absent from the county, in the city of Chicago, to which point he had started on the 14th day of February. When the case was called on the 26th of March, appellant presented a second application for, a continuance on account of the absence of Dr. Newton. This was overruled. Had a subpoena been issued at any time between the 11th day of January and the 13th day of February, it would have been in the hands of the sheriff at the time when Dr. Newton was in the county, and might have been served. At the time the application to continue was made on the ,20th day of February, the court would have been justified in overruling it for lack of diligence. The delay of more than a month in applying for process, in the absence of sufficient explanation, was’ not diligence. See Albertson v. State, 84 Tex. Cr. R. 574, 208 S. W. 923; Morse v. State, 85 Tex. Cr. R. 83, 210 S. W. 965; Davidson v. State, 86 Tex. Cr. R. 243, 216 S. W. 624; Armstrong v. State, 88 Tex. Cr. R. 433, 227 S. W. 485. The granting of it was an act of grace rather than one of right. •

It further appears from the record that there was a suggestion made at the time that the deposition of Dr. Newton be taken. At the time the second application was made on-the 26th of March, no step had been taken to-secure the written testimony of Dr. Newton. It is true that, if his deposition had been taken, it might have been quashed on motion, because he was only temporarily absent from-the county, and the taking of his deposition was not a matter of right. If his testimony had been produced in writing, however, and the court had refused to receive it, or had quashed the deposition, the matter would' come in a different light. That in refusing to-grant the second application for a continuance the trial court did not abuse the discretion which the law. vested in him seems clear.

The motion is overruled.

On Second Motion for Rehearing.

MORROW, P. J.

The affirmance of the-judgment was based upon the theory that the-witness W. R. Newton departed for Chicago-on the 14th of February. We have been convinced from the record that the date of his-departure was the 14th of January, and, taking into account the other facts in the record, the diligence to secure his' attendance was such as entitled the appellant to a postponement or continuance, in order to secure the testimony of the witness Newton.

The second motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is reversed,, and the cause is remanded.  