
    SMITH v. STATE.
    (No. 8706.)
    (Court of Criminal Appeals of Texas.
    March 4, 1925.)
    1. Infants <§=68 — Refusal to abate prosecution on ground of pendency of complaint charging juvenile delinquency held not error.
    Refusal to abate prosecution on ground that defendant was under 17 years of age when alleged offense occurred, and that complaint charging him as juvenile delinquent was pending, held) not error, where defendant'was more than 17 years old when indictment was returned and it did not appear why juvenile case had not been disposed of.
    2. Criminal law <§=598(7) — Application for continuance for absence of witnesses held not to show diligence.
    Application for continuance on ground of absence of witnesses, which did not show procurement of additional process by defendants after granting .of prior continuance on same ground, 'held not to show diligence.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    T. B. Smith was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both pf Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor with punishment fixed at one year in the penitentiary.

On March 23, 1923, the sheriff of Jones county, accompanied by another officer, undertook t'o stop appellant, who was driving a car in Jones county but near the Eisher county line. Appellant did not heed the efforts of the officers to stop him, but drove the car around them and turned towards Fisher county. The officers gave chase, firing several shots at the car, and finally effected the arrest. A tow sack was found in the ear saturated with whisky. A small quantity remained in a portion of a jar which had been broken. Both officers tasted it and testified positively that it was whisky. Another party was in the car with appellant. While they were trying to escape, the officers saw one of them raise the tow sack and drop it on the floor of the car.

Appellant undertook to have the prosecution in this case abated, alleging that he was under 17 years of age at the time the transaction occurred and that his father had made complaint charging him as a juvenile delinquent based upon the same facts upon which the state relied for a conviction in the present case; that the complaint and information had been filed -in the county court of Fisher county and was pending there at the time this indictment was returned in Jones county. It is admitted in the plea that appellant was more than 17 years of age at the time the indictment was returned in the present prosecution. The order of the court overruling appellant’s plea recites that evidence was heard 'thereon, but none is brought forward for inspection by this court. The offense is alleged to have occurred on the 23d of March. The complaint and information was not filed in the county court of Fisher county until the 15th day of May. The indictment in the present case was returned in Jones county on June 1st. Nothing appears in the record to apprise this court why the juvenile case in Fisher county had not been disposed of, nor as to when appellant became 17 years of age. As presented the action of the court in overruling the motion shows no error.

Appellant sought a continuance on account of the absence of the witnesses Dye and Via. It is alleged in the application that process was issued for the two witnesses on June 11, 1923, and that the sheriff’s return shows that Dye was served on the 14th day of June, and that Via was not served for the reason that he could not be found in the county. The record shows a continuance to the next term of court was entered in this cause on July 7, 1923. There is nothing to show that Via was present at the July term when the case was continued. No additional process appears ever to have been requested either for him or Dye. The application fails to show such diligence as would entitle one to a continuance.

There being no errors in the record, the judgment is affirmed. 
      ©=»For other oases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes
     