
    MANN v. STATE.
    (No. 5724.)
    (Court of. Criminal Appeals of Texas.
    March 24, 1920.
    Rehearing Denied May 12, 1920.)
    !. Criminal law <@=>l 144(7) — Denial of continuance sustained when not shown to he erroneous.
    The presumption is that an application for a continuance was properly overruled, and the action of the trial court will be sustained where the only showing of diligence to procure the testimony of absent witnesses is that an attachment was issued and appearance bond given more than a year prior to trial, with no showing as to whether they appeared or what subsequently became of them, especially where the materiality of the testimony is not made apparent so as to render it probable that defendant was injured.
    2. Criminal law <@=»l 171 (6)— Argument as to defendant’s evasion of apprehension not prejudicial.
    On a trial for pursuing the business of selling intoxicating liquors in prohibition territory where detectives testified for the state, the argument of the county attorney that the state was justified in employing persons as witness to apprehend a defendant who had been so smooth as to violate the law and evade other means of apprehension was not injurious to defendant where the lowest punishment permissible was given.
    3. Criminal law <@=>507(4) — Detectives who were in employ of county attorney not “accomplices.”
    On a trial for pursuing the business of sell-, ing intoxicating liquors, a detective employed by the county attorney and another whose services were procured by the detective, both of whom testified that they purchased liquor from defendant, but neither of whom made any other effort to induce him to engage in business, were not “accomplices” under Vernon’s Ann. Pen. Code 1916, art. 602.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    4. Criminal law <@=829(3) — Requested instruction as to pursuing business of selling liquor sufficiently covered.
    On a trial for pursuing the business of selling intoxicating liquors, an instruction that it was not sufficient that defendant had liquor in his possession when arrested, and that he made several sporadic sales, but that he must sell it as a business proposition or -as his principal business, was properly refused where the court charged that it must be shown that such occupation or business occupied a part of his time and attention as a business or calling pursued for the purpose of profit or gain, as this was a sufficient and correct statement of the law.
    5. Witnesses <@=>374(I) — Evidence of compensation of witness, a detective, properly excluded.
    Where it was admitted that a witness for the state was employed by the county attorney to work up bootlegging cases, but it did not appear that he was employed on a contingent basis, or that he had not- been paid for his services in connection with defendant’s apprehension, evidence of the amount of his compensation was properly excluded.
    6. Intoxicating liquors .@=141, 235 — Evidence that sale was for sick person properly excluded.
    It would be no justification or excuse that one of the sales of liquor made by a person charged with pursuing the business of selling intoxicating liquors was made under the belief that the liquor was for a person who was ill, and evidence of that fact was properly excluded.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    W. A. Mann was convicted of an offense, and he appeals.
    Affirmed.
    See, also, 204 S. W. 434.
    Ivy & Stollenwerck, of Hillsboro, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Hill county of violating what is known as the Local Option Law by engaging in and pursuing the business and occupation of selling intoxicating liquors in territory where the sale of such liquors had been forbidden by a vote of the people, and his punishment was fixed at confinement for two years in the state penitentiary.

The indictment charges that between March 17, 1917, and April 25, 1917, appellant made more than 40 separate and distinct sales of liquor, to parties named as purchasers, and also charges that during February, March, and April, 1917, and anterior to the return of the indictment, more than two separate sales of liquor were made by him.

When the case was called for trial, an application for a continuance was made by the defense, because of the absence of the witnesses Bing and Norther. The date of said application is November 10, 1919. It is here insisted by the state that no legal diligence was shown. Examining the record, we observe that the indictment was returned April 25, 1917, and that the only effort referred to, or set out in said application, to obtain said witnesses, was that an attachment was issued on June 6, 1918, which was executed, as stated therein, on June 5, 1918, by attaching both said parties; and it is also recited in the application, as some kind of an excuse for lack of diligence, that the assistant county attorney had stated to appellant in the early part of 1919 that his case would never again come up for trial, and also that, since the case was called in September, 1919, he had been unable to locate said witnesses. The attachment and the return of the officer ishowing the execution thereof were made exhibits. The witnesses, according to said return, were required to give bond for their appearance at court on June 6, 1918. Whether they appeared or not, or what subsequently became of them, does not appear. In the absence of any affirmative showing of facts from which we might conclude that the witnesses were in attendance whenever the case was called, during more than a year after the time of their attachment, we would have to sustain the action of the trial court in overruling this application. The presumption would be that the application was properly overruled, unless the facts showed to the contrary.

We also think that there is no such statement of the proposed testimony of said absent witnesses as makes apparent its materiality, so that injury might appear probable. Appellant himself testified on the trial of the ease contrary to what is stated to be the expected testimony in said application, stating that a part of the liquor found in his possession when arrested belonged to a party who lived in the town of Hillsboro, where the trial occurred, and no reason appears why his testimony was not produced. We think the application was properly overruled.

By bill of exception No. 1 appellant complains of a remark of the county attorney in his argument to the jury to the effect that the state was justifiable in employing persons as witnesses, in order to apprehend a defendant, who had been so smooth as to pursue his course in violation of law, and evade other means of apprehension. No instruction in writing was requested by appellant to be given to the jury telling them to disregard such remark. The lowest punishment permissible was given, and we are unable to see in what way appellant was injured by such argument It is only by inference that such remark contains any statement which in any event could have been held injurious.

By his second bill appellant sought to have the court instruct the jury that witnesses Carroll and Seely were accomplices. Both by statute and decisions said witnesses were not accomplices. Article 602, Vernon’s Ann. Pen. Code 1916; Terry v. State, 46 Tex. Cr. R. 75, 79 S. W. 320; Albright v. State, 73 Tex. Cr. R. 116, 164 S. W. 1001; Fisher v. State, 81 Tex. Cr. R. 568, 197 S. W. 190. From the evidence it appears that Carroll .was a detective in the employ of the county attorney, and he procured the services of Seely; and both testified that many sales of liquor were made by appellant, which sales were promptly reported to the authorities. Further than to purchase liquor from appellant, no effort of said witnesses to induce him to engage in said- business, appears in the record.

Appellant’s third bill is to the refusal of his application for continuance, which has already been discussed.

By his fourth bill of exceptions appellant sought to have the jury instructed that it was not sufficient that he have liquor in his possession when arrested, and that he made several sporadic sales; also that he must sell same as a business proposition, or as his principal business.

In his general charge the trial court told the jury that, in order to constitute this offense, it must be shown that such occupation, or business, occupied a part of the time and attention of appellant as a business or calling, pursued for the purpose of profit or gain. This is a sufficient and correct statement of the law, and it was not error to refuse said special charge. The statute requires that at least two sales be shown, and from the evidence it appears without any contradiction, other than the statement of appellant, that 'from 30 to 50 sales were made by appellant during the months of March and April.

The authorities cited by appellant are those by this court, in which it is held that, unless the business is followed as a business proposition, or for the purpose of gain or profit, and where only a few sporadic sales are shown, the evidence is not sufficient.

Requested charge No. 2, the refusal of which is complained of in bill No. 5, was not called for by any evidence, and was fully covered by the main charge.

There was no error in refusing to compel the state’s witness Carroll to testify what compensation he received for his work as a detective in tha premises. The expectant answer, as disclosed by the bill of exceptions, would be that he received $5 per day and his expenses, including money which was used to buy whisky. If said witness had been employed on a contingent basis, or if there appeared any evidence in the record showing that at the time he was before the jury in 1919 he had not yet been fully paid for his services rendered in 1917 in this connection, so that from said evidence there might arise a fair inference of pecuniary' interest in the conviction, a different conclusion might be reached. Nothing of the kind is here shown, and we do not think it material, in view of the fact that it was admitted that he was employed by the county attorney to work up bootlegging cases, to show the amount of the compensation.

Appellant has also a bill complaining of the refusal of the trial court to permit him to show by the witness Earl Prior that on one occasion when he bought liquor from appellant he told appellant that he wanted it for the witness Seely, who was sick. Appellant emphatically denied'making any sale to Prior, and we think, if it is true that he did sell to said, witness, it would be no justification or excuse that he sold same believing that it was for Seely, who was ill. • We do not think this would change the legal effect of such sale, if made.

Finding no error in the record, the judgment of the trial court will be affirmed.

MORROW, J., not sitting. 
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