
    FREELAND v. STATE.
    (No. 11766.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    1. Criminal law <&wkey;598(6) — Continuance for absent witness held properly refused, where only effort was subpoena issued day before trial (Code Cr. Proc. 1925, art. 543).
    Refusal to grant continuance in liquor prosecution because of absence of witness, where trial took place approximately two months after indictment and subpoena issued for witness day before trial was returned on day of trial, with statement that witness could not be found, and during trial no effort was made to secure his attendance, held not error, since diligence required by Code Cr. Proc. 1925, art. 543, was not shown.
    2. Criminal law <&wkey;627i/¿ — Bill complaining of loss of label on bottle of whisky allegedly purchased from defendant, which counsel desired to use for handwriting comparison, held not to show error.
    Bill of exceptions showing that bottle of whisky upon which there was label was exhibited to jury and identified by prosecuting witness as. having been purchased from defendant, and that after it was identified court instructed that label be erased, and‘thereafter counsel for defendant insisted he desired it for comparison of handwriting of prosecuting witness, held not to show error, where judge qualified bill, stating he was unable to restore label, and defendant failed to show pertinency of proposed comparison of handwriting.
    3. Criminal law <&wkey;942(l) — Testimony to impeach state’s witness held not available as basis for new trial on ground of newly discovered evidence.
    Testimony tending to impeach state’s witness by showing his discharge for reprehensible conduct while policeman at another place held not available as basis for motion for new trial on ground of newly discovered evidence.
    4. Witnesses &wkey;>344(l)' — Testimony showing state’s witness was discharged while acting as policeman held not proper impeachment.
    In liquor prosecution, testimony that state’s witness had been discharged for reprehensible conduct while acting as policeman at another place held not available for purpose of impeachment, since it was merely an effort to impeach character of witness by an isolated transaction entirely foreign to case on trial.
    Appeal from District Court, Lamar County; George P. Blackburn, Judge.
    
      Horace Freeland was convicted of unlawful sale of intoxicating liquor, and lie appeals.
    Affirmed.
    Lattimore & Birmingham and Clias. Roach,, all of Paris, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The purchaser named in the indictment was W. H. Patterson. No statement of facts accompanies the record bringing forward the evidence that was heard by the jury upon the trial.

There are three bills of exceptions. In the first bill complaint is made of the refusal of the court to continue the case because of the absence of Coz Richey, also known as B. V. Richey, a resident of Lamar county. No service had been had upon the witness. The indictment was returned and the appellant arrested on October 11, 1927. The trial took place on the 14th of December, 1927. A subpoena was issued on the 13th of December for the witness, and returned not executed upon the following day, stating that the witness could not he found in that county. During the trial no effort was made to secure the attendance of the witness. The motion fails to show the diligence which the law requires. See article 543, C. C. P. 1925.

On appeal, the appellant appears by a different counsel from the one who appeared upon the trial. The testimony of the attorney who tried the case was taken on the motion for new trial, hut is not deemed of a nature to show diligence in an effort to procure the testimony of the absent witness.

As qualified, it appears from bill No. 2 that a bottle of whisky upon which there was a label was exhibited to the jury and identified by the prosecuting witness as having been purchased from the appellant. After it was identified, the court instructed that the label be erased. After the label was destroyed, counsel for the appellant insisted that he desired it for use in the comparison of the handwriting of Patterson. The judge, in qualifying the bill, stated that he was unable to restore the label, and the bill, moreover, fails to show the pertinency of the proposed comparison of the handwriting.

A motion for new trial was sought to secure new evidence. That part of the motion in which it is alleged that the witness Patterson had been convicted of a felony in the state of Oklahoma exhibits the fact that it was not newly discovered, but, as the motion is understood, the fact was known in advance, but that counsel was surprised that the witness denied it. Another averment in the motion is that Patterson, who was acting as a policeman in Dallas, had been discharged for some reprehensible conduct. This fact was merely an effort to impeach the character of the witness by an isolated transaction entirely foreign to the case on trial. See McAfee v. State, 17 Tex. App. 139, and other eases collated by Mr. Branch in his Ann. Tex. P. O. § 168. Impeaching testimony is not ordinarily available as a basis for a new trial upon the ground of newly discovered evidence. See Gibbs v. State, 1 Tex. App. 12, and other cases collated in Branch’s Ann. Tex. P. 0. § 202. Moreover, the purported testimony would not have been available for impeachment purposes if the testimony had been present. It may be added that, even if there had been error committed by the court in ruling upon the evidence, this court without knowing what evidence was before the jury, would be unable to determine that the error was harmful.

The judgment is affirmed. 
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