
    WILLIAMS v. STATE.
    (No. 9485.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.
    Rehearing Denied Jan. 20, 1926.)
    1. Criminal law &wkey;>603(2)— Application for continuance, failing to comply with mandatory requirements of statute, held properly refused.
    Am application for continuance, -which failed to state residence of witness or that it was unknown; that application was not made for delay; or that testimony could not be procured from any other known source, as required by Yernon’s Ann. Code Cr. Proe. 1916, art. 608, subds. 1, 5, and article 609, subd. 1, which requirements are mandatory, held properly refused.
    On Motion for Rehearing.
    2. Intoxicating liquors <&wkey;223(6) — Not necessary to show pro rata payment to defendant by joint purchasers of liquor to sustain con-viotion.
    To warrant conviction of selling intoxicating liquor jointly to several parties-, it is not necessary to show that each handed his pro rata part of money to seller, if it shows- that each purchaser was present and contributed his part, and that seller knew of such contributions.
    Commissioners’ Decision.
    Appeal from District Court, Titus County ; R. T. Wilkinson, Judge.'
    Jim Williams was convicted of selling liquor, and he appeals.
    Affirmed.
    Hiram G. Brown, of Mt. Pleasant, for appellant. •
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Titus county for the offense of selling liquor, and his punishment assessed as confinement in the penitentiary for a term of one year.

Appellant, in his brief and by oral argur ment, very earnestly contends that the court erred in refusing to grant his subsequent application for a continuance. We have very carefully examined this application and have reached the conclusion that it is entirely insufficient. Article 608, Vernon’s C. C. P., in the first subdivision thereof, provides that, if the name and residence of the witness is known, it must be stated, and, if the residence is unknown, this must be stated. The application in this case wholly fails to state the residence of the witness, and also fails to state that it is unknown. This within itself renders the application fatally defective. Thomas v. State, 17 Tex. App. 437; Vanwey v. State, 41 Tex. 639; Wolf v. State, 4 Tex. App. 332; Davis v. State, 69 Tex. Cr. R. 86, 154 S. W. 226; Anderson v. State, 8 Tex. App. 542.

The said article of the statute in the fifth subdivision thereof provides that the application must state that it is not made for delay. This article of the statute has been held to be mandatory. Peck v. State, 5 Tex. App. 611; Zumwalt v. State, 5 Tex. App. 521; White v. State, 9 Tex. App. 41; Wynne v. State, 59 Tex. Cr. R. 126, 127 S. W. 213; Johnson v. State, 59 Tex. Cr. R. 425, 128 S. W. 1123; Perry v. State, 63 Tex. Cr. R. 637, 141 S. W. 209.

The application also fails to state that the testimony cannot be procured from any other source known to the defendant. Subdivision 1 of article 609, Vernon’s C. C. P., makes this allegation one of the requisites in a subsequent application for a' continuance. This provision of the statute has also been held to be mandatory. Page 324, Vernon’s C. O. P., for full citation of authorities on this question.

Appellant very earnestly contended in his oral argument that the application should be granted on equitable grounds. We have carefully considered the record, and are unable to reach the conclusion that any equitable showing is made for this continuance.

The record contains many bills of exceptions to the charge of the court, and to the introduction and exclusion of testimony. We have carefully examined each of these and have reached the conclusion that no error is shown by either of them. In every instance we think that the court’s ruling was correct.

We have carefully examined the statement of facts, and are thoroughly convinced that, if the state’s testimony is true, the appellant was guilty under the count submitted to the jury. If the testimony offered by the appellant had been accepted by the jury, they would have been warranted in acquitting him; but the issue of fact was-clearly drawn in the case, and this matter was properly submitted by the’court in his charge, and we cannot say that the appellant has not been tried according to the forms of law and convicted on sufficient proof.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

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.

On Motion for Rehearing.

BERRY, J.

Appellant contends in his motion that the case should be reversed because the evidence fails to show that the sale was made to each of the. parties named in the count of the indictment under which he was convicted. We have again carefully examined this matter, and cannot agree with appellant’s contention. We think the facts are entirely sufficient to show that the sale was made jointly to the parties named. It is true that but one of them did the actual physical act of turning over the money to the appellant; but the facts and circumstances are amply sufficient to show that in the presence and hearing of the appellant each of the parties contributed money to the purchase, and each of the parties was present at the time the purchase was made, and the appellant knew, if the state’s testimony was true, that each of the parties was interested in the purchase.

We do not understand any case to hold that, before the proof can show a sale to several parties, it must also show that each of the parties actually handed his pro rata part of the money to the seller. The proof is sufficient, if, as in this case, it shows that each purchaser contributed his part and was present at the time and place of the sale, and that the seller knew that each buyer was contributing money or other thing of value toward the purchase of the liquor.

Believing that the case was correctly de- . cided in the original opinion, the appellant’s motion for rehearing is overruled.

PER CURIAM.

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. 
      fg^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     