
    LOYD v. STATE.
    (No. 10020.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.
    Rehearing Denied Oct. 20,1926.)
    I-. Crimina! law <@=>939(2) — Refusal of new trial because of newly discovered evidence which due diligence wouid have produced in time for trial was not error.
    In prosecution for sale of intoxicating liquor, refusal of motion for new trial because of newly discovered evidence,’ to be given by witness who was not subpoenaed, was not error, where diligence was not used to obtain testimony at trial.
    2. Criminal law <@=>1038(1).
    Under Code Cr. Proc. 1925, art. 666, requiring objections to charge to be made before they were read to jury, objections raised for first time on motion for new trial were too late to be considered on appeal.
    3. Witnesses <©=>337 (5).
    Permitting defendant on cross-examination to be asked if he were not indicted for felony with another in a separate case, for purpose of impeachment, was not error.
    4. Criminal law <©=>409(3).
    Testimony of sheriff that he delivered named person to penitentiary agent, and that such person was in penitentiary, was not subject to objection that it was not the best evidence.
    5. Criminal law <©=>814(17).
    Where prosecuting witness testified to having bought whisky from defendant, failure to charge on circumstantial evidence was not error.
    6. Criminal law <@=>1120(3) — Bills of exoep- ■ tions, because of exclusion of answer to questions not showing what answer would have been, do not enable cdurt to pass on admissibility of testimony.
    Bills of exceptions complaining of sustaining of objections to questions asked prosecuting witness, but failing to show what answers would have been, do not enable court to determine whether proposed testimony was admissible.
    On Motion for Rehearing.
    7. Criminal law <©=>598(7).
    Defendant charged with selling liquor held lacking ill diligence in failing to subpoena witness, claimed by him to have been present, and not entitled to continuance.
    Commissioners’ Decision. „ .
    Appeal from District Court, Upsliur County ; J. R. Warren, Judge.
    Pat Loyd was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    C. E. Florence and M. B. Briggs, both of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BAKER, J.

The appellant was convicted in the district court of Upshur county for unlawfully selling intoxicating liquor, and his punishment assessed at three years in the penitentiary.

The record discloses that the appellant was charged by indictment with unlawfully selling to Henry Mings intoxicating liquor on or about the 15th day of April, 1925; that said indictment was returned into court and filed on May 16, 1925; and that the appellant was tried and convicted on October 6, 1925. The record further discloses that, when this case was called for trial, the appellant announced ready, and after the state had introduced the prosecuting witness, Mings, and he had testified in behalf of the state to the effect that he purchased from the appellant on the 15th day of April, 1925, a quart of corn whisky, paying him $2.50 for same, then the appellant sought to withdraw his announcement of ready for trial and have his case postponed or continued for the want of the testimony of one Berry Winn, by whom, it is alleged in said application, he expected to prove that a negro brought the whisky in question to the back end of the drug store where the prosecuting witness said he received same. The application shows upon its face that said witness had never been subpoenaed up to the time when the appellant sought to withdraw his announcement and continue the case, but the appellant seeks to overcome his lack of diligence in this respect by alleging that there were three other cases pending against him for alleged sales of intoxicating liquor in the back end of said drug store to the prosecuting witness, Mings, and one W. B. Winn, and that he did not know, until after he heard the prosecuting witness’ testimony, what particular set of facts the state would rely upon for a conviction. Aside from the fact that said application does not show any diligence to obtain the testimony of the absent witness there is nothing in the application showing that the appellant used any diligence to ascertain what state of facts or transaction the state was relying upon for a conviction, from the date on which the indictment was returned to the time of the trial. There is no error shown in the refusal of the court to grant the application for a postponement or continuance..

Bill of exception No. 7 complains of the action of the court in refusing to grant appellant’s motion for a new trial on the ground of newly discovered evidence, and raises the same question as bill No. 1, relative to the desired testimony of the witness Berry Winn, and what we have stated with reference to said bill No. 1 applies fully to bill No. 7. '

In bills of exception Nos. 2 and 3, the appellant complains of certain paragraphs of the court’s charge to the jury, which ob-jeetions were raised for tlie first time in tire motign for a new trial. These objections came entirely too late, and in order to be considered by this court they should have been presented to the trial Court before his charge was read to the jury. -Article 666, 1925 C. C. P., states:

“All objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial."

This has been the law since the Acts of the Legislature of 1913, p. 278.

In bill of exception No. 4, complaint is made to the action of the court in permitting the district attorney, on cross-examination, to ask the appellant if he were not indicted with one Hale in another and separate case, and in permitting the district attorney to have the sheriff testify, over appellant’s objection, that he had delivered Charley Flowers to the penitentiary agent, and that he was sent to the penitentiary for making whisky. This bill, as presented, shows no error. If the appellant had been charged with a felony in another indictment, it was proper for the state to ask him about it on cross-examination for the purpose of affecting his credibility as a witness before the jury; and the objection raised to the sheriff’s testimony that Charley blowers, the man from whom the appellant stated he obtained the whisky in question for the prosecuting witness, Mings, was in the penitentiary, because said testimony was not the best evidence obtainable, is not tenable. We know of no evidence that would be better than the testimony of the sheriff himself to the effect that he delivered said witness to the penitentiary authorities and that he was in the penitentiary at the time of the trial, if the sheriff knew it was a fact, as the bill indicates.

Bill No. 5 complains of the failure of the court to charge the jury on circumstantial evidence. This record does not disclose any error in this respect. The witness Mings testified positively to having purchased the whisky in question from the appellant, paying him $2.50 therefor. These facts do not call for a charge on circumstantial evidence.

Bill No. 6 complains of the remarks used in the closing argument of the district attorney to the jury. This bill, as presented, shows no error.

Bills Nos. 8 and 9 complain of the action of the court in sustaining the state’s objections to appellant’s questions propounded to the prosecuting witness, Mings, as to his being before the grand jury, but the bills, as presented, fail to show what the answers of said witness would have been, and therefore this court is unable to determine whether or not said proposed testimony was admissible. See Branch’s Ann. P. C. p. 136, par. 4, citing Massey v. State, 1 Tex. App. 569, Lut-trell v. State, 14 Tex. App. 152, Porter v. State, 60 Tex. Cr. B. 588, 132 S. W. 939, Fletcher v. State, 69 Tex. Cr. R. 135, 153 S. W. 1135, and many other authorities there collated. Also, see Punchard v. State, 91 Tex. Cr. R. 603, 204 S. W. 939.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PEB OUBIAM.

The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Behearing.

HAWKINS, J.

Appellant devotes the principal part of his motion for rehearing and argument thereon to the contention-that the trial court’s refusal to permit appellant to withdraw his announcement and continue the case to secure the testimony of Berry Winn should not have been sustained. 1

Mings, the alleged purchaser, testified that he asked appellant if he had any whisky, to which appellant replied that he did not have it there, but would have to go after it; that this conversation occurred in the rear of Winn’s drug store; that in a few minutes he again saw appellant in the front of the drug store and appellant said it was back there in a carton on the shelf, that he paid appellant $2.50 and secured the whisky. Mings says no one was present but he and appellant at the time of the first conversation, and makes no- mention of any one being present at the time of the last conversation when he learned from appellant where the whisky was and paid him for it.

Appellant testified that Mings asked appellant if he knew where Mings could get some whisky and told Mings he did not have any, but would try to find some; that this took place in the back end of Winn’s drug store; that appellant left and found a negro by the name of Flowers, who said he had some whisky, and appellant told him Mings wanted it and told him to take it to -the drug store; that appellant went on towards the post office and came in the front door of the drug store, when Mings asked him if he found anything, and he told him “Yes,” that it was back on the shelf. Appellant claims to have seen Flowers put the whisky on the shelf. He says Mings gave him the $2.50 which appellant handed to Flowers, and that Winn was present and witnessed the transaction.

Under this .state of the record, we cannot agree with appellant’s claim that he was not lading in diligence in procuring process for Winn previous to the trial. According to his own evidence, Winn was present during part of the transactions with Mings. It occurs to us that the slightest diligence would have .prompted an effort to secure Winn’s presence to support appellant’s theory.

We have examined into the other questions urged by appellant in his motion for rehearing and think they were properly disposed of in our original opinion.

The motion for rehearing is overruled. 
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