
    ALLEN v. STATE.
    (No. 11263.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    1. Criminal law <&wkey;>598(6) — Refusal of continuance was not error, where no diligence was shown , in application for process for witnesses.'
    In prosecution for transporting intoxicating liquor, where defendant was arrested on Saturday, indicted on Monday, and convicted on Thursday, refusal of his motion for continuance was not error, where his attorney was told by trial judge on Sunday that, if grand jury indicted him on Monday, his case would be tried that week, and, after indictment, no diligence was shown in application for process to secure attendance of his witnesses.
    2. Criminal law <&wkey;609 — Determination of question as to whether district attorney said defendant would not be tried that week, in ruling on motion for continuance, was within trial court’s discretion.
    Where defendant was indicted for transporting intoxicating liquor on Monday, and tried on Thursday, determination of question in motion for continuance whether diligence was shown in application for process for witnesses, and whether district attorney told de fendant’s attorney that defendant would not be tried that week, which district attorney denied, was within .trial court’s discretion.
    3. Criminal law <&wkey;586, 1151 — Trial-Judge has discretion in ruling on continuance of criminal prosecution, which will not be controlled, unless abused.
    Trial judge has discretion in ruling on application for continuance of criminal prosecution 'to secure attendance of witnesses, which will not be controlled, unless abused.
    4. Criminal law &wkey;>598(2) — Denying continuance was proper, where no effort was made to obtain presence or testimony of witnesses, nor showing of witnesses’ testimony.
    In prosecution for transporting intoxicating liquor, refusal of continuance for absent witnesses was not error, where no effort was made to obtain presence or testimony of witnesses, and no showing made that, if absent witnesses were present, they would testify, or that testimony, if given, would likely be true.
    Appeal from District Court, Collingsworth County; O. C. Small, Judge.
    L. R. Allen was convicted of transporting intoxicating liquor, and he appeals.,
    Affirmed.
    R. H. Cocke, of Wellington, for appellant.
    A. A. D'awson, State’s Atty., of Austin, for the State.
   LATTIMQRB, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The facts in the case show transportation of intoxicating liquor by appellant. He was arrested on Saturday, May 21, 1927, indicted May 23d, convicted May 26th, and sentenced May 27th.. Apparently small ground exists for complaint at the slow movement of the “mills of the gods” in Collingsworth county.

The only question arises from the refusal of a continuance. It appears from the record that on the 22d of May the attorney for the accused was told by the judge of the trial court that the grand jury would be convened on the 23d of the same month to consider this case, and, if an indictment was returned, the case would be tried during that week. An indictment was returned on the 23d, and, instead of applying for process for witnesses, the efforts of appellant and his attorney seem to have been directed to getting bond; the attorney leaving for Gray county to get bondsmen to make the bond, being gone one or two days. Not until the 25th of May was any list of witnesses given to or gotten by appellant’s attorney. When so obtained, there is no showing that application for process was made. It is not claimed in the application for continuance, made on the 26th of May, that process had been issued or asked for. Clearly no diligence appears.

It is asserted by appellant’s attorney, as reason for this, that the district attorney had told him that the case would not be tried that week. This was specifically denied by the district attorney, and was thus made an issue, the settlement of which was primarily for the trial court, and for this court only in case it appears that the discretion of the court below was abused. We are not led to conclude — either in regard to the refusal to continue or to grant a new trial — that such discretion was exceeded. It sometimes happens, when diligence is not shown, that the materiality and importance of the absent testimony is made to appear so cogently on the trial that we conclude a new trial should have been granted. In this case appellant said he wanted a continuance for witnesses Lee and Stewart to prove that the box containing the ten jars of liquor was put in the car driven by appellant without his knowledge; also a witness named Allen, to prove that the car driven by appellant belonged to a Mr. Ladd, who had instructed appellant to get a box of goods or tools, from a man at a restaurant in ■Granite, Okl., on the trip in question. Other witnesses were named in the application, but. nothing is stated as expected from them. As •stated above, not the slightest effort was made to obtain the presence or testimony of any witness. The witness Allen was stated to be at Shamrock, which is only a few miles from Wellington, where the case was. tried. The other witnesses lived just across the border in Oklahoma. Appellant did not take the stand, nor did he introduce any witness whose testimony can be looked to as suggesting that, if the absent witnesses were present, they would have given the testimony stated as expected •of them, nor that such testimony, if given, would likely be true. No effort appears to procure any affidavits from any witness in •support of the motion for new trial.

The judgment is affirmed. 
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