
    THOMAS v. STATE.
    (No. 9531.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.)
    I.Criminal law &wkey;369(15), 371(1), 372(1)— Where issues of intent, identity, and system are involved, proof of other offenses is admissible, if relevant thereto.
    Where issues of intent, identity, and system are involved, evidence of other offenses is admissible, if relevant thereto.
    2. Criminal law <&wkey;369(6).
    Proof of possession of a quantity of liquor reasonably near date of alleged sale is admissible on charge of selling liquor.
    3. Criminal law <&wkey;369(2) — Testimony material and relevant to issue on trial will not be rejected, because in and of itself it proves a separate offense.
    Testimony relevant and material to the issue in case on trial will not be rejected, because in and of itself it proves a separate offense; all that is required in such case being that rights of accused be safeguarded by an appropriate charge restricting the effect of such testimony in consideration by jury.
    4. Criminal law <&wkey;>673(5) — Admission of testimony as to other sales of intoxicating liquor, restricted by judge to consideration for purpose of showing identity of accused only, held proper.
    In prosecution for selling intoxicating liquor, admission of testimony as to other sales of liquor, which was restricted by judge to consideration by jury for purpose of showing identity of accused only, held proper.
    5. Criminal law &wkey;s594(2) — Refusal of continuance for absence of wife, living in another state, held proper, where accused had made no attempt to take her deposition, certificate of physician did not certify wife was unable to attend, and no effort was made in motion for new trial to support materiality of her testimony.
    In a prosecution for selling intoxicating liquor, refusal of continuance for absence of accused’s wife, living in another state, held not erroneous, in view of showing that accused, though he had ample opportunity, had not taken her deposition, certificate of physician given day before trial did not certify wife was unable to attend court as witness, and no effort was made in motion for new trial to support materiality of her testimony or show that wife would testify as stated in application.
    6. Intoxicating liquors &wkey;>236(ll).
    Evidence held sufficient to support conviction for selling intoxicating liquor.
    <S=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Bud Thomas was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Sid Crumpton, of Texarkana, for appellant. Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Bowie county of selling intoxicating liquor; punishment fixed at two years in the penitentiary. .

There is no question of the fact that a sale of whisky was made in the nighttime about the first of November to three young men who drove out along the highway between Sulphur river and Texarkana to a point where a schoolhouse stood near the road, from which they turned and went to a house “right behind the schoolhouse,” stopped, and holloed for “Mr. Thomas,” ánd a man came out and asked them what they wanted, and they asked him if he had any. He said he thought so, and sold them five quarts of whisky. They said the house was on the left of the road coming toward Texarkana,' but they could not identify appellant as the man who sold them the whisky, and the ease was submitted on the law of circumstantial evidence. Some one had told them if they would go there, they could get it, and on this information they went. They said the house where they got the whisky was two or three miles from Sul-phur, etc., but they had never been there before.

The state introduced Stone and Austin as witnesses. Stone said appellant lived out on the highway between Sulphur and Texarka-na, about two and a half miles from Sulphur, on the left of the road going toward Texar-kana; that there was a schoolhouse there, and appellant lived “right behind the schoolhouse.” He further said on November 8th he and Austin went to appellant’s place at night and he sold them whisky. In his charge the learned trial judge told the jury they could consider this testimony of Stone and Austin for no other purpose than as showing the identity of the appellant as the seller of the whisky charged in this case, if they believed it did so show. The admissibility of this testimony is challenged by bills of exception Nos. 2 and 3, and in a special charge asked instructing the jury not to consider such testimony, the refusal of which was excepted to.

Among other things recognized by all the authorities as furnishing exceptions to the general rule rejecting testimony of extraneous crimes appear intent, identity, and system. Many authorities are cited in section 166 of Mr. Branch’s Annotated P. C., sustaining the proposition that, when these questions are in issue, proof of other offenses is admissible, if same be relevant. When the charge is selling liquor, proof of possession of a quantity thereof reasonably near the date of the alleged sale is admissible. Wagner v. State, 109 S. W. 169, 53 Tex. Cr. R. 306. Witness Stone said appellant had the liquor in a ten-gallon can and sold him four and one-half gallons. In prosecutions for manufacturing liquor, proof of sales thereof reasonably near the time alleged, has been held competent by this court. Thielepape v. State, 231 S. W. 769, 89 Tex. Cr. R. 493. Possession of whis-ky, though unidentified as coming from a still possessed by the accused, has been held admissible as a relevant circumstance. Anderson v. State, 238 S. W. 221, 91 Tex. Cr. R. 183. One of the well-settled doctrines in practice is that, if testimony be material and relevant to an issue in the case on trial, it will not be rejected because in and of itself it proves a separate offense. In such case all that is required is that the rights of the accused be safeguarded by an appropriate charge restricting the effect of such testimony in the consideration by the jury. See, also, Dowd v. State, 148 S. W. 304, 66 Tex. Cr. R. 580; Davison v. State, 12 Tex. App. 215; Pitner v. State, 39 S. W. 662, 37 Tex. Cr. R. 268; Gorman v. State, 106 S. W. 384, 52 Tex. Cr. R. 327; sections 31-34, Wharton’s Crim. Ev.; Bateman v. State, 193 S. W. 666, 81 Tex. Cr. R. 73, 3 A. L. R. 1535.

Appellant asked for a continuance because of the absence of his wife. They had moved to, and lived in, Arkansas. The indictment was returned in December, and the trial had the following March. If appellant desired the testimony of a witness who lived out of the state, he should have taken her deposition. The certificate of the physician given the day before the trial does not certify that said wife was unable to attend court as a witness. No effort was made in the motion for new trial to support the materiality of said testimony, or the fact that the wife would testify as stated in said application.

We cannot agree that the evidence in this case is not sufficient to support the conviction. We have enumerated some of the facts above.

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