
    GAUNCE v. STATE.
    (No. 11428.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    Rehearing Denied April 25, 1928.
    1. Intoxicating liquors <§=>238(5)- — Refusal of peremptory instruction to acquit held proper under evidence.
    In prosecution for selling intoxicating liquor, court’s refusal to give a peremptory instruction for acquittal held proper under the evidence.
    2. Criminal law <§=>814(17) — Refusal to give special charge on circumstantial evidence held not error, in view of positive testimony of sale and identification of defendant as seller.
    In prosecution for selling intoxicating liquor, refusal to give special charge on circumstantial evidence held not error, in view of positive testimony of sale and identification of defendant as seller.
    3. Indictment and information <3=199 — Proof held to correspond to allegations of sale, making proper a refusal to direct verdict of not guilty on ground of variance.
    In prosecution for selling intoxicating liquor, proof held to correspond to allegations of sale so as to make proper the court’s refusal to direct a verdict of not guilty, requested on the ground of variance.
    
      4. Criminal law <⅜=>589(2) — Refusal to grant continuance on account of defendant’s attorney’s illness held not ground for reversal, where attorney was present at trial and ably represented defendant.
    Court’s refusal to grant defendant in liquor prosecution a continuance on account of Ms attorney’s illness held not ground for reversal, where the bill of exceptions was so qualified as to show that defendant’s attorney was present at the trial and represented his client in an able and masterly manner.
    Appeal from District Court, Fannin County ; George P. Blackburn, Judge.
    Luther Gaunce was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    N. H. Bather, of Honey Grove, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, three years in the penitentiary.

The facts appear amply sufficient to support the conviction. There are five bills of exception. Bill No. 1 sets out the evidence of a state witness and appears to be reserved to the action of the court in entering judgment on the verdict of the jury on the ground that same did not support the judgment. No error appears.

Bill No. 2 complains of the refusal of a peremptory instruction to acquit. The charge was properly refused. Bill No. 3 was taken to the refusal of the court to give a special charge on circumstantial evidence. This charge was correctly refused. The state witness testified that he went to appellant’s house and bought from him two bottles of whisky. He positively identified appellant as the man from whom he bought it. He testified to the amount of money he paid, that he knew appellant’s voice, etc. The case does not seem to be one on circumstantial evidence.

Bill No. 4 seems to be to the refusal of the court to instruct a verdict of not guilty, asked because of a variance between the allegation and the proof. The allegation was of a sale to John MeBrayer, who testified that he and Joe MeBrayer went to appellant’s house in a car together on the night in question. He said that each of them wanted a bottle of whisky, and that Joe gave him $2 when they reached the house, and that he bought from appellant two pints of whisky, paying him $2 for each pint. He said he got one for himself and one for Joe. We think the allegation and the proof correspond.

The court refused to continue this case because of the alleged illness of appellant’s attorney. The bill of exceptions is qualified by the statement that appellant’s attorney, claimed by him to be ill, was present at the trial and represented his client in an able and masterly manner. We do not think the bill shows any error.

Being unable to agree with any of the contentions made on behalf of the appellant, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant’s motion for rehearing is based on the sole contention that the facts called for an instruction on the law of circumstantial evidence. With this point in mind we have again carefully examined the facts, the result being that we still think appellant’s contention is not meritorious.

The motion is overruled. 
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