
    MOORE v. STATE.
    (No. 7961.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    1. Criminal law &wkey;s622(2) — Denial of severance held proper.
    Code Cr. Proc. 1911, arts. 727, 791, and Pen. Code 1911, art. 91, require that, in order to make the granting of severance imperative, the coindictee must be available, so that the trial of his ease will not necessitate a continuance of his codefendant; hence, where a coindietee had failed to appear for trial after being released on bail and a forfeiture of his bond had been ordered, a motion by his codefendant to sever was properly overruled.
    2. Criminal law <&wkey;595 (4) — Continuance for absent witness held improperly denied.
    In trial for unlawful transportation of intoxicants, a first application for continuance because of absence of witness who would testify that the contents of the jug, which accused broke when he niet prosecuting witness, was not whisky, 7ield improperly denied.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Joe Moore was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. E. & Carlos B. Masterson, of Angleton, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s • Atty., of Devine, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of five years.

The appellant was jointly indicted with Claude Bell. He applied-for a severance, filing his affidavit in accord with article 727 of the C. C. P. The severance was denied. The hill complaining of the refusal of the court to grant the motion, as qualified, shows that Bell, the coindictee, had been released on bail, and that he failed to appear for trial, that the forfeiture of his bond had been ordered, and that after this occurred, the motion to sever was overruled, and the appellant placed on trial. If we properly comprehend the law of severance, under the facts detailed by the bill, as qualified, there was no error committed. The statutes on the subject of severance (article 791, C. C. P.; article 91, P._ C.; and article 727, C. C. P.), as construed," require that, in order to make the granting of the severance imperative, the coindictee must be available so that the trial of his case will not necessitate a continuance of his codefendant. Krebs v. State, 8 Tex. App. 1; Anderson v. State, 8 Tex. App. 542; Clark v. State, 81 Tex. Cr. R. 157, 194 S. W. 157; Stouard v. State, 27 Tex. App. 1, 10 S. W. 442; Williams v. State, 27 Tex. App. 466, 11 S. W. 481; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629; Bruce v. State, 76 Tex. Cr. R. 72, 173 S. W. 301; Sapp v. State, 87 Tex. Cr. R. 606; 223 S. W. 459; Rocklin v. State (Tex. Cr. App.) 75 S. W. 305. In fact, the statute (article 727, C. C. PI) contains this language:

“ * * * Provided, that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party.”

The application for a continuance because of the absence of the witness Ben Johnson was overruled. It was the first application for a continuance, and the witness appears to have been duly subpoenaed. His absence is not accounted for, but the averment in bhe application to the effect that he was not absent by the procurement or consent of the appellant and that he' has reasonable expectation of the attendance of the witness on another trial is not controverted.

The leading issue of fact is whether or not the bottle of liquid which was in the possession of the appellant and which was broken was whisky. Appellant, according to bhe state’s theory, had in his possession a gallon jug or jar which he was carrying upon his person toward a certain hotel. Upon meet-' ing bhe prosecuting witness he purposely threw the jug against an object and broke it. It contained liquid which the witness declared was whisxy. It is the appellant’s position and testimony that the jar did not contain whisky, but that it was a Coco-Gola, jug, in which he had placed some water to cleanse it, and that while he was carrying it to a store to get some vinegar he was met by the prosecuting witness, who was an enemy of his and who presented a pistol. In his excitement, the appellant turned, and the jug accidentally hit a post. The absent witness, according to the averment in the application, would have testified that the contents of the jug was not whisky.

As the record is presented, we are constrained to regard the application as one which should have been granted.

The judgment is reversed,, and the .cause remanded.  