
    TOLBERT v. STATE.
    (No. 11598.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    1. Criminal law &wkey;>596(3)'— Continuances will rarely be granted to obtain impeaching testimony.
    In criminal prosecution, continuances will rarely be granted to obtain impeaching testimony. i
    2. Criminal law <&wkey;598(2) — Refusal of continuance to enable defendant to obtain evidence to impeach state’s witnesses held not error, in view of lack of diligence.
    In prosecution for selling intoxicating liquor, where defendant knew some time before trial that two of state’s witnesses were federal prohibition officers, refusal to grant continuance, because he learned of their place of residence two days before trial, to enable him to obtain witnesses as to their bad reputation for truth and veracity, was not reversible error, especially in view of lack of showing of diligence to obtain such testimony and of failure of affidavit attached to motion for new trial to show that such witnesses had bad reputation in such respect.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County ; Hawkins Scarborough, Judge.
    Dee Tolbert was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    El J. Gibson, of Corsicana, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.

The only question presented for review on this appeal is the refusal of the court to grant what appellant terms an “equitable motion” for a continuance.

The indictment alleges the sale of intoxicating liquor by appellant to one W. F. Wol-verton. The evidence shows that witnesses, Wolverton and Bryant, both testified to the alleged sale, and both were federal prohibition agents. Wolverton lived at Madill, Oklahoma, and Bryant at Whitewright, Texas. The indictment was returned on January 5, 192T. It is alleged in the motion that-appellant first learned of the residence of the witnesses on, February 21, 1927. He was tried on February 23, 1927, and his motion for a new trial was heard and overruled March 21, 1927. The substance of the motion is, if given time, he thought he could obtain reputable witnesses at the homes of said witnesses who would swear that said Wol-verton and Bryant are “unworthy characters, and men of bad reputation for truth and veracity.” To the motion for new trial is attached the affidavit of one Lee Dunn, the substance of which is that he was well acquainted with, W. F. Wolverton; had known him for 23 years; and that the reputation of said Wolverton as to truth and veracity was bad. No ether affidavit is appended to such motion.

Continuances will rarely be granted to obtain impeaching testimony. Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Branch’s P. C. § 324. Diunn fails to make affidavit that he was acquainted with the general reputation of Wolverton in the community or communities in which he had resided, and the appellant’s showing was in that respect fatally defective. He does not show himself qualified to testify, nor is it alleged in the motion that witnesses could be obtained who could qualify in this respect. Further, the record shows that appellant was aware some time before the trial of the fact that these witnesses/ were federal prohibition officers, and we are of the opinion that no sufficient showing of diligence to obtain this testimony prior to the trial is made to appear in the record.

Believing the action of the court correct in overruling spch motion and the evidence amply sufficient to sustain the conviction, the judgment is affirmed.

PER OURIAM. 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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