
    ATWOOD v. STATE.
    (No. 8974.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.)
    Rehearing Denied Dec. 2, 1925.)
    1. Criminal law <@=»603(7) — Application for continuance must show on its face materiality of testimony of absent witnesses.
    Application for continuance, based on absent witnesses, must show on its face materiality of their testimony.
    2. Intoxicating liquors ©=>238(2) — .Submission of theory of principals to jury held justified by evidence.
    In prosecution for unlawful possession for purpose of sale submission of theory of principals to jury held justified by evidence, indicating that 'accused • was acting with another" in possessing the liquor for purposes of sale.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Harry Atwood was convicted of unlawful possession of liquor for purpose of sale,-and he appeals.
    Affirmed.
    See, also, 96 Tex. Cr. R. 249, 257 S. W. 563.
    B. D. Shropshire, of Weatherford, and Burkett, Orr & McCarty, of Eastland, for appellant.
    Tom Garrard, Spate’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Eastland county for the unlawful possession of liquor for the purpose of sale, and his punishment assessed at confinement in the penitentiary for a term of three years.

By bill of exception No. 1, appellant complains of the action of the court in overruling a motion to quash the jury panel. The •questions raised in this matter are governed by the principles announced in the case of Hart v. State (Tex. Cr. App.) 276 S. W. 233, this day decided, and of McNeal v. State, 274 S. W. 981, decided by this court on May 20, 1925, and under the authority of those cases appellant’s first assignment will be overruled.

By bill No. 2, appellant complains that the court erred in overruling his first application for continuance. This application is wholly insufficient to show the materiality of the testimony expected to be given by the absent witnesses. It merely states certain facts which appellant expects to prove, but wholly fails to embody anything in the motion showing or tending to show wherein said statements would be material to any issue in the case. It is well settled in this state that the application for a continuance must show on its face the materiality of the absent testimony. See paragraph 3, § 311, of Branch’s P. C., for full citation of authorities on this question. -

The third bill of exception complains of the court’s refusal to instruct a verdict of not guilty. This charge was properly refused. The evidence in this case is amply sufficient to establish the appellant’s guilt.

Appellant contends that the court erred in submitting the theory of principals to the jury. We cannot agree with this contention. The evidence from the state’s standpoint clearly indicated that appellant was acting with another in possessing for sale the liquor in question.

Finding no error in the record the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that our disposition of the question raised by his motion to quash the jury panel was erroneous. The exact point was decided against him in Hart v. State (No. 8728) 276 S. W. 233. It was discussed at some length in the opinion on rehearing in that case handed down on October 14, 1925, in which our view relative to the question is fully set out.

The motion for rehearing is overruled. 
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