
    WASHINGTON v. STATE.
    (No. 10614.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.)
    Criminal law <®=»956(5) — Refusal of new trial for refusing continuance held not abuse of discretion, in view of affidavit that absent witness would not give alleged testimony.
    Overruling motion for a new trial, based on refusal to allow continuance to secure testimony of certain witness, held not abuse of discretion, where affidavit of such witness was presented in which he stated that he did not know of alleged facts set out in motion and would riot have testified to them.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Arch Washington was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Affirmed.
    Wn. H. Hanson, of Tyler, for appellant.
    Sam D.' Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

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

The state's evidence is direct and definite, to the point that the appellant sold whisky to the purchaser named in the indictment.

In a single bill of exceptions conrplaint is made of the refusal to grant a motion to continue in order to secure the testimony of the witness Oliver. There is attached to the bill an explanation by the trial judge to the effect that, upon the hearing of the motion, for new trial, there was presented the affidavit of the/witness Oliver, stating that he did not know of the alleged facts set out in the motion, and that, if present, he would not have testified to the same. An examination of the motion for new trial reveals the fact that the affidavit was attached to the state’s contest of the motion, and in the affidavit the witness categorically denied the truth of the aver-ments in the motion for a continuance to the effect that he would give certain testimony. It is specifically declared in the affidavit that he did not know of the facts imputed to him in the motion, and that he was not present at the time and place claimed in the motion for a continuance. Under these circumstances, it was within the discretion of the trial judge to overrule the motion for new trial. See Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588; Wilkins v. State, 35 Tex. Cr. R. 525, 529, 34 S. W. 627; Hinman v. State, 59 Tex. Cr. R. 31, 127 S. W. 221; and numerous other cases collated in Branch’s Ann. Tex. P. 0. § 337.

The judgment is affirmed. 
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