
    SMITH v. STATE.
    (No. 9473.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.
    Rehearing Denied March 3, 1926.)
    1. Criminal law &wkey;>1099(1).
    Purported statement of facts, not approved by trial judge, will not be considered, in view of Code Cr. Rroc. 1925, art. T60.
    On Motion for Rehearing.
    2. Criminal law <&wkey;M099(ll) — Statement of facts may be considered on showing that it was agreed to by counsel, approved by judge, and filed, though copy reaching Court of Criminal Appeals had no certificate of judge’s approval.
    Statement of facts, agreed to by counsel, approved by presiding judge, and duly filed, will be considered, though copy reaching Court of Criminal Appeals did not bear certificate of judge’s approval.
    3. Criminal law <&wkey;l038(3), 1056(1) — In prosecution for sale, of liquor, failure to charge on defensive theory of gift is not available on appeal, without exception or request to charge (Vernon’s Ann. Code Cr. Proe. 1916, arts. 737a, 743).
    In prosecution for selling liquor, failure to charge on defensive theory of gift is not available on appeal, in absence of exception or request for special charge, under Vernon’s Ann. Code Or. Proa. 1916, arts. 737a, 743.
    4. Criminal law &wkey;>l 176 — Denial of new trial for refusal of continuance to secure- witness was not reversible error, where expected testimony contradicted defendants, and record does not show subpoena was then executed.
    Denial of new trial was not reversible error, in prosecution for unlawfully selling intoxicating liquor, where it appeared that defendants’ motion for continuance because of absence of material witness was denied, but the expected testimony contradicted defendants, and the record on the motion for new trial did not show service of subpoena.
    
      ■ 5. Criminal law &wkey;»742(I)—Intoxicating liquors <&wkey;>236(11)..
    ' Evidence held to sustain conviction for unlawful sale of liquor; credibility of witnesses being for jury.
    Appeal from District Court, Fisher County ; Bruce W. Bryant, Judge.
    L. L. Smith was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    Ponder & Perrél, of Roby, and T. Vard Woodruff, of Sweetwater, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, 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 two years. The consideration of the purported statement of facts is not authorized, for the reason that it is void of verification by the trial judge. A certificate of approval by the trial judge is essential. Article 760, C. C. P. 1925. In the absence of a statement of facts, we are not able to appraise the bill of exceptions complaining of the denial of the motion for a continuance.

The judgment is affirmed.

On Motion for Rehearing.

It is made to appear in the motion for rehearing that the statement of facts was agreed to by counsel, approved by the presiding judge and duly filed, though the copy which reached this court did not bear these certificates. The facts now before us are entitled to a consideration.

Appellant was charged in separate counts with the manufacture of intoxicating liquor and with the sale thereof. The conviction is for the latter offense.

Horace Griffin, who is named as the purchaser, justified that on the 25th day of December he purchased from the appellant a quart of whisky; that the appellant, in company with one Woolsey, came to the house of the witness and delivered the whisky; that no payment was made at the time, though it was promised and was subsequently paid. According to Griffin, in making the payment, he gave the appellant seven dollars, five of which the witness had previously borrowed, and two of which were in payment of the whisky.

Appellant and his wife testified that on the day mentioned by Griffin he received from the appellant a bottle of whisky; that it was a gift and not a sale; that the transaction took place at the home of the appellant, which was quite a distance from that of the witness Griffin.. It was claimed by both the appellant and his wife that, when appellant made Griffin a present of the whisky, payment was offered by Griffin, but was refused by the appellant.

Against the charge the point is made that there was fundamental error in failing to submit the appellant’s defensive theory of gift. The court did tell the jury that there could be no conviction unless they found, beyond a reasonable doubt, that the appellant, at the home of Horace Griffin, sold him intoxicating liquor; and further charged:

“If you have a reasonable doubt as to the presence of the appellant at the time and place, when and where the offense, if arfy, was committed, you will find him not guilty.”

It would have been proper for the court to have instructed the jury upon the defensive theory of gift which arose from the testimony of the appellant and his wife. In the absence of an exception to the charge upon that ground or a special charge requested, the matter is not before this court for review. A mere omission in the charge of a defensive theory raised by the evidence is not available in the absence of a procedure directing the attention of the trial court to the omission at the time of the trial. See Vernon’s Tex. Crim. Stat., arts. 737a and 743; also Linder v. State, 250 S. W. 703, 94 Tex. Cr. R. 316; Vernon’s Tex. Crim. Stat. 1922 Supp. p. 2504, notes 61 and 62.

A motion for a continuance was made. Appellant was arrested upon the 17th day of February and tried on the 24th of that month. On the 21st of the month he made an application for a subpoena for one Webb, alleged to be a resident of Bubboek county. The subpoena had not been returned at the time of the trial. According to the application, the appellant expected to prove by the witness Webb that on the 25th day of December (the date of the alleged sale), he was present at the home of the appellant; that he saw Horace Griffin at the home of the appellant and saw the appellant give him a bottle of whisky; that the appellant specifically refused to receive pay for it, stating to Griffin that no pay was expected and that it was a gift. The materiality of this testimony cannot be questioned. The thing to be considered is whether in overruling the application and the motion for a new trial the learned trial judge abused his discretion. The term of court at which the trial took place was adjourned on the 5th day of March, some ten days after the trial began. Appellant, testifying in his own behalf, made no mention of the presence of Webb at the time of the alleged transaction. The wife of the appellant, if her testimony is comprehended, was specific in her declaration that Webb was not present. She testified upon her direct examination that she was present; that she saw Griffin, saw the whisky delivered, heard the conversation, heard the appellant refuse to accept payment, and heard him declare that the whisky was a gift. On cross-examination she went into details descriptive of the transaction, and said:

“My sister was in the room. Her name is Ijois Henry. There was no one else; there were no children old enough to know.”

The sister named was not called as a witness. On the hearing of the motion for new trial, which was overruled on the 4th of March, there was no explanation of her failure to testify or of the failure to account for the absence of the subpoena for Webb or his affidavit. It is not to be understood that such an affidavit was essential, but the absence of such explanation renders it more difficult for us to find a basis for the conclusion that the overruling of the motion for new trial was an abuse of discretion. For the consideration of the trial judge upon the motion for new trial are the materiality of the testimony of the absent witnesses, its probable truth, and the effect it would probably have upon the verdict of the jury. See Vernon’s Tex. Grim. Stat. vol. 2, p. 320, note 34. The declaration has heretofore been made that where the testimony of the appellant and his witnesses is contradictory of the proposed testimony, the refusal of the application is warranted. See Waul v. State, 26 S. W. 199, 33 Tex. Cr. R. 228, and other cases in Vernon’s Tex. Crim. Stat. vol. 2, p. 608; McAdams v. State, 5 S. W. 826, 24 Tex. App. 86; Hollis v. State, 9 Tex. App. 643. The improbability of securing the attendance of the witnesses upon another trial is likewise a matter for consideration.

In the present case, at the time the motion for a continuance was made, the subpoena had not been returned. Whether at the time the motion for new trial was heard it had been returned, and whether executed or not, is not revealed. Knowledge of. these facts would bear upon the probability of securing his attendance upon a delay. His proposed testimony is apparently in direct conflict with that of the appellant’s wife, in that her testimony was to the effect that no others were present besides those named by her. The appellant does not testify that Webb was present, nor does .he call his .sister-in-law, who was present, to corroborate his own testimony and that of his wife. In view of all of these matters, we are constrained to the view that this court would not be authorized to reverse the case on the point under consideration.

On the sufficiency of the evidence, there is conflict which cannot be reconciled and the issue was one determinable only upon the credibility of the respective witnesses. If Griffin’s testimony was true, the sale was made at his house. If the testimony of the appellant and his wife was true, no sale was made. The transaction was a gift and took place, not at Griffin’s house, but at that of the appellant. The credibility of the witnesses was for the jury. The appellant and his wife were interested witnesses, and it cannot be said that the jury was not authorized to determine the issue arising from a conflict of evidence in favor of the State. See Hawkins v. State, 270 S. W. 1025, 99 Tex. Or. R. 569.

The motion for rehearing is overruled. 
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