
    FEARS v. STATE.
    (No. 3636.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Criminal Law &wkey;>1168 — Appeal—Harmless Error — Failure to Require Election.
    Where accused, charged with unlawfully selling liquor, did not in due time request the court to require an election on which of three sales proved a conviction would be sought, he could not complain of the failure of the court to require an election, for his conviction could be pleaded as former jeopardy for any of the offenses proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3121, 3125, 3129-3136, 3144; Dec. Dig. &wkey;1168.]
    2. Criminal Law &wkey;>949 — New Tria3>-Newly Discovered Evidence — Requisites.
    New trial on the ground of newly discovered evidence was properly denied, where neither accused nor any one else swore to the motion, and the newly discovered witness did not make any affidavit.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2337, 2339-2344; Dec. Dig. <&wkey;>949.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Amos Fears was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Affirmed.
    W. R. Cousins, of Hemphill, for appellant. 0. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a misdemeanor conviction, with the lowest penalty assessed, for a violation of the law prohibiting the sale of intoxicating liquor in prohibition territory.

The complaint and information charge an unlawful sale of intoxicating liquors by appellant to John Bostick, on or about January 10, 1915. John Bostick for the state, on direct examination, testified:

“My name is John Bostick. I live in Pine-land, Sabine county, Tex. On the 10th day of January, A. D. 1915, I bought three half pints of whisky from the defendant Amos Fears. [Points him out.] I bought one half pint about 10 o’clock in the morning, and another half pint about 2 o’clock in the evening, and about 2:30 in the evening I went back and bought another half pint. I paid 65 cents in Pineland checks for each of the half pints. I paid for each as I got it. The whisky was in half pint bottles. This all occurred in Sabine county, Tex.”

Appellant denied any sale to Bostick, and claimed that Bostick stole the whisky from him. His testimony, if believed, would have been sufficient for the jury to have acquitted him. Likewise, it was ample on the state’s side, if believed by the jury, to have convicted him. The state’s side evidently was believed by the jury. Both sides agreed that prohibition was carried and in force in said county prior to the time the law made such an offense a felony.

Appellant made a motion for a new tria on several grounds, and took a bill of excep tions to the court’s overruling it. There was no error in the ruling.

Appellant ¡requested a charge withdrawing from the jury the evidence tending to establish the three sales of whisky, for the reason that he was being tried for one crime only. The court refused this because, he said, it came too late. If in time, it would have been proper for the court to have required the county attorney to elect which one of the three sales proven he sought the conviction in this case upon, but not having done so, it inured to his benefit, because this trial and conviction could be successfully pleaded as former jeopardy, and the conviction in this case would prevent his trial and conviction for either of the other offenses committed on the same day, as we hold in his companion case this day decided.

The only other question is one ground of appellant’s motion for new trial claiming a new trial on the ground of newly discovered evidence. Neither he nor any other swears even to his motion, and the affidavit of the party from whom he claims the newly discovered evidence could be had makes no affidavit whatever. The motion meets none of the requisites required to authorize or require a new trial on this ground. Gray v. State, 144 S. W. 284; section 1149, White’s Ann. C. C. P.

The judgment is affirmed. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     