
    SMITH v. STATE.
    (No. 8058.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    Criminal law 176 — Refusal of new trial, asked on ground of improper refusal of continuance, held error.
    Where the evidence to sustain a conviction was not of a conclusive character, the action of the trial court in refusing a motion for new trial based upon the improper denial of a continuance to secure additional testimony was reversible error.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    B'. E. Smith was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    W. H. Murchison, of Haskell, J. S. Kendall, of Munday, and James A. Stephens, of Big Springs, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover O. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Lawless owned a farm of 130 acres, two-thirds of which was in cultivation and one-third in pasture. All, however, was covered with Johnson grass. The place for the year 1922, if we properly comprehend the evidence, was leased by Lawless to one Jarnigan, who resided on the place at the time of the alleged offense in November, 1922. The appellant seems to have been occupying one of the two houses upon the premises.

Under a search warrant his house was searched, and in it was found a quart of whisky described as “white corn whisky,” also a dozen and a half fruit jars. In the pasture, at a distance variously estimated at from 150 to 400 yards from the house, which was at the time occupied by the appellant, and about a mile from the other house, there were found several other containers with whisky in them, also some empty barrels, oil barrels, and a copper gasoline tank. The officers found places on the ground where mash had been poured out, which appeared to be mash which might have been used in making the whisky. There was evidence that fires had been built at points near where the whis-ky and other property described were found. The state’s witnesses testified that the articles found were not capable of making whis-ky. They were not connected. There was no worm to connect the boiler, and no condenser. The articles found would have been usable as parts of a still, but not sufficient to complete one.

The indictment was filed on the 14th day of February, and the trial took place on the 19th of the same month. The absent witnesses were William A. Harris of Tarrant county and B. Jarnigan, a resident of Throck-morton county. By Jarnigan it was sought to prove that the appellant had no control of the premises on which the property in the pasture described was found, and by Harris the appellant expected to- prove that he had upon his premises no equipment suitable for manufacturing intoxicating liquors. Subpoenas for each of these witnesses had been applied for on the 16th of February, and according to the averments of the motion, had been forwarded to the counties in which the witnesses were charged to have resided. The state controverted the motion for a new trial, based on the refusal of the application, with testimony to the effect that W. S. Brit-ton, sheriff of Knox county and who had been a resident of that county for a number of years, knew no such person as William A. Harris or W. A. Harris, having resided in that county on November, 1922. Two other witnesses gave testimony substantially to the same effect.

The evidence showing that the appellant committed the offense charged is not of the most conclusive character. In fact, it varies in its cogency very little, if any, from that revealed in the cases of Williams v. State, 88 Tex. Cr. R. 402, 227 S. W. 316, and Hardaway v. State, 90 Tex. Cr. R. 485, 236 S. W. 467, wherein the evidence was insufficient to sustain the conviction. At all events, in view of its character, it is believed that the learned trial judge fell into error in refusing to grant the motion for a new trial based upon the refusal to continue the case. If it be conceded that the controverting affidavits touching the witness Harris rendered the probablity of securing his testimony so doubtful as to justify the action taken by the trial judge, the same cannot be said of the witness Jarnigan. Other parts of the record reveal that Jarnigan had resided upon the premises of the appellant, and that it was under his control. The diligence to secure his attendance being sufficient, the learned trial judge, aftéf overruling the application for a continuance and hearing the evidence, should have granted a new trial.

Because of his failure to do so, the judgment is reversed, and the cause remanded. 
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