
    WALKER v. STATE.
    (No. 5049.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    1. Criminal Baw <&wkey;598(2) — Continuance— Absence oe Witness — Diligence.
    Where defendant’s motion for continuance for absence of a witness, the case having been called for trial January 24th, alleged such witness had gone to another town temporarily on January 18th, no process having been issued to the county of the witness’ residence and place of trial, or served on the witness, and no process was issued for her in the town to which she went until January 22d, and such process was not returned, the diligence to secure her attendance was insufficient.
    2. Cbiminal Baw <&wkey;917(2) — Continuance— OVERRULING OE MOTION.
    Where defendant’s amended motion for new trial was not filed or acted upon until more than two weeks after he was tried and convicted, and the affidavit of neither of the witnesses for whose absence he had asked continuance was filed in connection with the motion for new trial, or otherwise, and no reason or excuse was giv,cn why that was not done, the court did not on-in refusing new trial.
    Appeal from Nacogdoches County Court; J. H. Perritte, Judge.
    J. T. Walker was convicted of malting a sale of intoxicating liquor in a county where prohibition was in force, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of making a sale of intoxicating liquor in Nacogdoches county where prohibition was in force, and the law made it a misdemeanor only, and the lowest punishment assessed. The evidence by the state was amply sufficient to sustain the verdict, because evidently the jury believed that testimony and disbelieved appellant’s to the contrary.

The complaint and information were filed against appellant on December 15, 1917. He was doubtless arrested at once. Nothing is shown to the contrary. When the case was called for trial January 24th following, appellant made a motion for a continuance on account of the absence of Bud Paine and Mary Sanders. The motion shows that Bud Paine had been subpoenaed on January 19th, and attended court a couple of days. Just the day before the case was called for trial, as we understand the bill and the judge’s qualification, the 'appellant excused the further attendance of that witness. Both these claimed witnesses were residents of the town of Nacogdoches, where the court was held and the cause tried. No process was issued to that county or served on the witness Mary Sanders. It is alleged that she had gone to San Antonio temporarily on January 18th. No process was even issued for her at San Antonio until January 22d, and that process was not returned. The diligence to secure her attendance was therefore wholly insufficient. It may he conceded that, if these witnesses would have testified what appellant alleges they would, their testimony would have been material for him. However, his amended motion for new trial was not filed nor acted upon until more than two weeks after he was tried and convicted. The affidavit of neither of these witnesses is filed in connection with the motion for new trial or otherwise, and no reason or excuse is given why this was not done. The court did not err in overruling his motion for a continuance nor in refusing him a new trial because thereof.

The judgment is affirmed. 
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