
    PERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1911.
    Rehearing Denied Dee. 13, 1911.)
    1. Criminal Law (§ 598) — Continuance — Absence of Witnesses—Diligence.
    Defendant was arrested about February 4th, charged with an offense against the liquor law, and his case called for trial on April 5th. He had no process issued for an absent witness until two days before his cause was set for trial, and the witness was not summoned. Held, on a motion for continuance on the ground of the absence of the witness, that defendant’s diligence was insufficient.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 603)—Continuance-Sufficiency of Application.
    An application for a continuance, on the ground of absence of a witness, which does not state that he was not absent by procurement or consent of the defendant, that the application is not made for delay, and that there was no reasonable expectation that the attendance of the witness could not be secured during the term, is insufficient.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dee. Dig. § 603.]
    3. Criminal Law- (§ 1120)—Appeal—Bill of Exceptions.
    Where there is no bill of exceptions showing what the evidence would have been, error in its exclusion cannot be considered on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    4. Intoxicating Liquors (§ 236)—Offenses —Sufficiency of Evidence.
    Evidence in a prosecution for violation of the liquor law held to sustain a conviction.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 236.]
    Appeal from Brown. County Court; A. M. Brumfield, Judge.
    J. E. Perry was convicted of violating the liquor law, and he appeals.
    Affirmed.
    Robt. L. Russell, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $75 and 30 days’ confinement in the county jail, from which judgment he presents an appeal to this court.

The court did not err in overruling the motion for a continuance. It appears that appellant was arrested about the 4th day of February, charged with this offense, and his case called for trial on the 5th day of the following April. He had no process issued for the absent witness until the 3d day of April, or just two days before his case was set for trial. The witness was not summoned, and the diligence is insufficient.

In addition to this, the application does not state that witness is not absent by the procurement or consent of the defendant, that the application is not made for delay, and that there was no reasonable expectation that the attendance of the witness could not be secured during the term, and is therefore insufficient in law.

There being no bill of exceptions in the record showing what the evidence of the witnesses C. M. Rogers, J. M. Rogers, J. W. Linch,. and Walter McCauley would have been, the ground in the motion urging that the court erred in excluding the testimony cannot be considered on appeal.

The only other ground in the motion is that the evidence does not sustain the conviction. The record shows that prohibition is in force in Brown county, and the state’s witness Crow swears positively that appellant sold him whisky on or about the date alleged in the information. It was shown that appellant received a quantity of whisky about this time, and if the jury believed the state’s witnesses the evidence fully supports the judgment.

Affirmed.  