
    BROWN v. STATE.
    (No. 3251.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Intoxicating Liquob (§ 236) — Unlawful Sale — Evidence.
    In a prosecution for selling intoxicating liquor in prohibition territory, testimony that witness purchased a bottle of whisky from defendant and paid $1 for it would authorize a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.] •
    2. Criminal Law (§ 598) — Continuance-Absent Witness.
    Where all the witnesses named in defendant’s application for a postponement attended court, except one who lived in another state, and no effort was made to take her deposition, there was no error in overruling the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    3. Indictment and Information (§ 34)— Signature — Foreman of Grand Jury.
    Where_ the foreman of the grand jury signed the indictment, the fact that his signature was not indorsed or signed on the back thereof below the words “A true bill” did not .vitiate the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 138-143; Dec. Dig. § 34.]
    4. Criminal Law (§ 324) — Presumption— Innocence.
    The presumption of innocence is not a substantial right of defendant, equal to a witness in his behalf.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. § 719; Dec. Dig. § 324.]
    Appeal from District Court, Clay County; R. H. Buck, Special Judge.
    Link Brown was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Chas. E. Davis, of Ryan, Okl., for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Sfor other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year’s confinement in the state penitentiary.

Will Tolbert testified he purchased a bottle of whisky from appellant and paid him $1 for it; therefore this would authorize the conviction of appellant.

He first complains of the action of the court in overruling his application for a postponement of the case on account of the absence of four witnesses. By the qualification of the court to the bill it is shown that all the witnesses named in the application attended court except one — appellant’s daughter. She lived in Oklahoma; consequently the issuance of a subpoena would not be diligence. No effort was made to take her depositions, and under such circumstances the court did not err in overruling the application.

The foreman of the grand jury signed the indictment, but his name was not indorsed or signed on the back thereof below the words “A true bill.” This did not vitiate the indictment, and the court did not err in so holding.

Appellant requested the court to instruct the jury:

That the “defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt is not a mere fiction of the law, but is a substantial right of the defendant equal to a witness in his behalf.”

This is not the law, and the court did not err in refusing the requested instructions. He gave the usual and customary instruction as to presumption oí innocence and reasonable doubt, and this was all that was necessary.

The judgment is affirmed.  