
    REDDELL v. STATE.
    (No. 8339.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1924.
    Rehearing Denied Feb. 11, 1925.)
    1. Intoxicating liquors <©=5236(6⅛) — Conviction of possession for sale" held supported by evidence.
    Evidence held to support conviction of possessing intoxicating liquor for sale.
    2. Criminal law <®=I 178 — Bills of exception not briefed not considered.
    ' Bills of exception not briefed by appellant need not be considered.
    3. Criminal law 3=603(11) — Continuance for absence of witnesses held properly refused for lack of diligence.
    Continuance for absence of witnesses, for whom no process was asked until nine days before trial, which was over three months after return of indictment and defendant’s arrest, held properly refused for lack of diligence, where no subpoena or return thereon was attached to application or appeared in record, whether in or out of county process was issued did not appear, application did not state date of return of process, and it was not shown that alias process might not have been sooner issued.
    4. Criminal law <©=603(11) — Due delivery of process to officer, and return date such that ' diligence could not have secured other process for absent witnesses must be shown to obtain continuance.
    It is not sufficient merely to state, in application for continuance, when process was issued for absent witnesses, but it must be shown that it was duly delivered to officer and returned on date such that diligence could not have secured other effective process.
    5. Criminal law 3=404(4)— Bottle of whisky, purchased from defendant on night before sale relied on for conviction of possession, held admissible.
    Bottle of whisky purchased from defendant night before sale relied on for conviction of possession for sale, held admissible as proof of sale contemporaneous with alleged possession.
    6. Criminal law 3=1091(2) — Whether case was transferred from another district court not raised by mere statement of objection in bill of exceptions.
    Bill of exceptions merely stating objection 'that case was never transferred from another district court, held insufficient to raise question in absence of proof of facts stated, attempted statements from record in brief not being considered.
    7. Criminal law 3=202(1) — Proof of convietion of possessing narcotics inadmissible in support of plea of jeopardy in prosecution . for- possessing intoxicating liquor.
    Possession or purchase, sale, and dispensing of narcotics, in violation of federal law, and contemporaneous possession of intoxicating liquor, in violation of state law, are not same transaction and offense, and proof of arrest, conviction, and punishment for. former is inadmissible in support of plea of jeopardy in prosecution for latter.
    Appeal from District Court, Jefferson County; George C. O’Brien, Judge.
    W. B. Reddell was convicted of possessing intoxicating liquor for purposes of sale, and appeals.
    Affirmed.
    Howth, Adams, O’Fiel & Hart, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of possessing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

On the night in question officers went with one Schmidt, who had volunteered to assist them in ferreting out violations of the liquor law, to a point near appellant’s place of business. At this place Schmidt, who had a marked 10-dollar bill, left the officers, and went into appellant’s place, and, according to his testimony, purchased a quart of whisky from appellant for which he paid him $10, giving him said marked bill. This quart of whisky Schmidt carried at once to the officers, and it was marked by them, and produced before the jury, and identified and offered in evidence. I.t was in testimony that shortly after Schmidt went into appellant’s place, the latter left and went to the corner of College and Railroad streets in the city of Beaumont where his place of business was. Officer Pollock testified that he followed appellant on bicycle to' said house. When appellant got to said house he went into a back room, unlocked a closet door, and got 5 quarts of whisky, which he carried out to his car, and thence back to his place of business. The officers later went to said house at College and Railroad streets with a search warrant, and upon investigation found there 25 bottles of liquor, being whisky, gin, and vermouth. They also found at the same place 30 grains of morphine.

When appellant was arrested that same night the officers searched him and found upon his person the marked bill which had been given to Schmidt, and which he claimed to have paid to appellant for the whisky in question. The number of the bill was given in testimony. Schmidt also testified that he was in appellant’s place on the night before that on which he was ’ accompanied by the officers, and that on said prior occasion he also purchased whisky from appellant. In our opinion the facts in evidence amply supported the conviction which was for the possession of' intoxicating liquor for purposes of sale.

There are a number of hills of exception in the record, each of which has been carefully examined by us, and in none of which do we conceive to be error, but we only notice those briefed by appellant.

Appellant complains of the overruling of his application for a continuance which was sought on account of the absence of two: witnesses. The indictment in this.case was returned -on April 2, 1923, and appellant was at once arrested. The case was not tried until the 18th of July following; ’.-.No. subpoena' or return of the officer thereon was attached to the application for continuance or appears in the record. No process was ashed for said witnesses until the 9th of July, and whether it was in or but of county process is not made to appear.'' The application for continuance does not state the date of the return of said process, nor is it shown that alias process might not have been sooner issued.

Under all the authorities it is not sufficient merely to state in the, .application' when the process was issued, but it must be shown that. it. was duly delivered to the officer, and when it was returned, and the. date of the return of the process must be such- as to show that diligence could not have secured other process which might have secured the presence of the witnesses.. The application was wholly lacking in diligence, and was properly overruled.

The second complaint briefed is that the -court erred in permitting the state to introduce the bottle of whisky claimed to have been purchased by Schmidt from appellant oh the night previous to the night he was accompanied by the officers.. Sales of intoxicating liqu.or contemporaneous, with the alleged possession for the purpose of sale fyave always been held provable, and no error was committed in allowing the state to- prove fully the sale made by appellant on the night before -the day he was charged herein. ■ The introduction of the bottle of whisky in question was part of the proof of sale. The matter presents no erroneous action.

Appellant’s third complaint is.that the case was on the docket of the Sixtieth judicial district of said county, and was tried in the Fifty-Eighth district, and that there was no order made by the.judge of the Sixtieth district transferring the case- to the Fifty-Eighth district.- We do not go into the merits of this question, because the bill of exceptions attempting to raise it is not sufficient. It merely states that before announcement, of ready -the attorney "for -appellant cálled'the attention of the jiidge of the Fifty-Eighth district court to the fact that this case was bn' the docket of the Sixtieth district court and that the indictment was returned in the Sixtieth, and that the case was -never transferred to the Fifty-Eighth district court by the judge of the Sixtieth district court. The bill then states that the court overruled said objection, and proceeded to try the cáse. There is no effort' made to show that in fact the ease had never been transferred, and the mere statement of such objection, without some proof of the truth of the facts stated, presents nothing upon which . this court may act favorably. Attempted statements from the record made in th,e brief cannot be .considered by us.

Appellant complains that the court erred in overruling his plea of jéopardy, and refusing to allow him to prove that he was immediately arrested and placed in jail by-the federal, authorities for the illegal possession of narcotics, to wit, the morphine that, was found by the officers; and that he was convicted and punished therefor in said court. We have no difficulty in concluding that the trial court properly, rejected the offered proof in support of the plea of jeopardy. Possession of narcotics, a crime under the federal statute, and contemporaneous possession of intoxicating liquor, a crime under the state law, seems to us to be in no legal sense one and the same transaction and offense. We do not believ.e it possible for appellant to have introduced any proof under a plea having for its. basis, the possession ■ of the morphine . referred to, which could legally identify the two offenses or make them part of the same illegal act or transaction.

• Appellant, cites the case of LaFlour v. State, 59 Tex. Cr. R. .645, 129 S. W. 351, where . a man by one shot killed two cows. There are numerous authorities holding that where a man by one act, such as a stroke or a shot, injures two or more people, he is guilty of but one offense. We are unable to perceive, however, the applicability of these cases. The certified copy of the judgment of the federal court attached jo appellant’s plea pf former conviction shows thát he was charged in that court with purchasing, selling, dispensing, and distributing morphine, and that he was convicted ot said, offense. If there be any basis for appellant’s contention that the possession of the morphine and the possession of the whisky would constitute but one offense, we fail to perceive how he could reason from this that possession of intoxicating liquor, and the purchase, sale, and dispensing of morphine was one and the same act, transaction, and offense.

This disposes ,of all the contentions of appellant which are set out in the brief. Finding no-error in the record, the'judgment Will be affirmed.

On Motion for Rehearing

In discussing our holding that his application for continuance showed no diligence, appellant insists, that one should',,not be re quired to apply for process until he -bad found out the address and exact location of the desired witness, and that the only question which should be held decisive is whether he used diligence in trying to locate the witness so as that he might give his exact address. Manifestly, to sustain such contention would put a greater burden upon the accused, and would deprive him of much assistance that might be rendered by the officers in searching for witnesses. However, we do not think an academic discussion of this question necessary, but deem our statement of the length of time that appellant allowed before he asked for process sufficient to demonstrate the entire lack of diligence in the ease before us.

Debating the correctness of our opinion that by reason of a federal conviction for a violation of the anti-narcotic law, jeopardy could not arise in favor of one charged with possessing intoxicating liquor for purposes of sale, appellant argues the law of carving, and cites Melton v. State, 71 Tex. Cr. R. 130, 158 S. W. 550, and insists that it discusses a parallel case in holding that one charged with rape might plead jeopardy based on an acquittal or conviction of a charge of bigamy. We are not impressed with the soundness of the opinion cited. Bigamy may be committed without carnal relation, and is a crime of wholly different elements from rape, and from its very nature does not seem to us to. be possible of being part of the same act or contemporaneous. The case of Hughes v. Commonwealth, 131 Ky. 502, 115 S. W. 744, 31 L. R. A. (N. S.) 693, also cited, states nothing different from the announcement of any decisions of our own court. We think the matter correctly decided in the original opinion.

Appellant presents in connection with his application for certiorari, or in lieu thereof, certified eopies of certain docket orders made in the courts below, one appearing to have been made by the judge of the Sixtieth district, and one by the judge of the Fifty* Eighth district. If we comprehend these at all, they show that this ease was originally in the Fifty-Eighth district where it was finally tried.

Not being in accord with any of the contentions, the motion is overruled. 
      
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