
    TANNER v. STATE.
    (No. 8028.)
    (Court of Criminal Appeals of Texas.
    April 9, 1924.
    Rehearing Denied May 21, 1924.)
    1. Criminal law <&wkey;596(3) — Continuance will not be granted to obtain impeaching testimony.
    A continuance will not be granted to obtain impeaching testimony.
    2. Criminal law &wkey;>6l4(l) — Denial of third continuance held not error.
    Denial of a third continuance, sought partially to obtain impeaching testimony, helé not error, in view of such fact and diligence shown as to other witnesses.
    3. Intoxicating liquors <8=3236(11) — Evidence held to sustain conviction for sale.
    Evidence helé to sustain conviction for sale.
    4. Criminal law <&wkey;74l(i), 742(1) — Credibility of witnesses and weight of testimony for jury.
    The jury are judges of the credibility of witnesses and weight of their testimony.
    On Motion for Rehearing.
    5. Criminal law <&wkey;l028 — For order prior to or contemporaneous with convening of term to become issue, issue must be raised during trial and made record.
    Eor a court order, made prior to convening of trial term or contemporaneous therewith, to become issue in particular case, it must be raised during trial and made a record thereof.
    6. Criminal law <&wkey;1064(1) — Irregularity in manner of calling of special term cannot be • first raised on appeal.
    Under Code Or. Proc. 1911, art. 929, where defendant went to trial at a special term, without objection to the manner in which it had been called, and did not raise such matter on motion for new trial, he was not entitled to urge any. irregularity therein on appeal.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Sam Tanner was convicted of selling intoxicating liquor, and he appeals..
    Affirmed.
    
      W. H. Murchison, of Haskell, and A. U. Curtis, of Temple, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jones county of selling intoxicating liquor, and his punishment fixed at five years in the penitentiary.

There is but one bill of exceptions in the record, and in it complaint is made of the refusal of a continuance. The indictment herein was returned in July, 1922, and on January 22, 1923, an application for continuance was made by the defense. Lee, Einley, Wilson, Earencamp, Green, and Buchanan were the absent witnesses. As showing diligence, it was stated that a subpoena for the first four named was asked for on December 22, 1922, and thereafter issued and duly served. As to the two last witnesses named, it was averred in the motion for continuance that their testimony only became known to the accused on the day of the making of the application. It was also stated that appellant received his information as to the testimony which would be given by the last two witnesses from one Stubbs. It is shown in the record that upon the hearing of this motion the court reset the case for January 31, 1923. If additional process was then asked for Wilson, this fact is not shown. On February 2, 1923, another application for continuance was made, alleging the absence of Wilson, Green, and Cope. This continuance was granted, -the only diligence appearing in the application for Wilson being the service of the same subpoena referred to and set out in the motion for continuance made on January 22d, to wit, a subpoena served on January 6th. The sickness of each witness named in this latter application was averred as an excuse for absence. The continuance was general. If process of any character was then asked for any of said witnesses, this fact does not appear.

From the caption of the transcript we learn that the trial herein was had at a special term of the district court of Jones county, which convened on March 3, 1923, and adjourned April 21st thereafter. That appellant had due'notice and corresponded with his witnesses relative to their attendance appehrs. On April 2, 1923, another continuance was asked, the same being because of the absence of Wilson, Green, and Cope. We again observe that the only diligence as to Wilson was the same subpmna (the one served on January 6, 1923) set up and relied on in the two former applications. The statement of this fact obviates need' for further analysis on our part to demonstrate lack of legal diligence as to Wilson. The order overruling the motion for continuance sets out that the learned trial judge then offered to direct an attachment for Cope, who lived in the adjacent county of Stonewall, but it is not made to appear that the offer of the court was accepted or that any attachment was issued for Mr.. Cope. An attachment telephoned to the officers of Stonewall county before the beginning of the trial would probably have secured the presence of Mr. Cope. As to the witness Green, it appears that he was served with process first on January 26th, after the first application for continuance was presented. His subsequent absence in February when a continuance was granted partly because of his absence is shown. If any other process for him was then asked, that fact is not revealed. The application made in April sets out Green’s testimony, most of which would serve only to contradict the state witness Knight as to certain testimony stated in the application as that which Knight would give upon the trial, but which the statement of facts herein shows that Knight did not give on this trial. This demonstrates the immateriality of that part of the testimony of Mr. Green. Substantially the only other testimony expected from this witness pertained to statements of Knight alleged to have been made by him to Green. If present the only effect of such testimony would be to impeach Knight. The decisions of our courts seem practically harmonious in holding that a continuance will not be granted to obtain impeaching testimony. Mr. Vernon collates many decisions in subdivision 25 of article 608 of his C. C. P.

As affecting the correctness of the overruling of the motion for new trial asked for chiefly because of the refusal of said continuance, we note that the statement of facts does not show that the witness Knight was asked any question by appellant relative to the matters stated as those expected from Mr. Green if present. If Knight had been asked as to such statements, he might have admitted making them, and appellant would have thus received the full benefit thereof. At least the verity of appellant’s claim that he wished to show by Green that Knight had made such statements, would have had some support. We also observe that the information had by appellant as to the testimony expected from Green, came to appellant from one Stubbs. It was not made to appear that appellant had even seen or talked to the witness Green. No affidavit of Stubbs appears in the record verifying the fact that Green, had ever given him ground for the information furnished appellant We are forced to uphold the action of the learned trial court in refusing the continuance.

For the .first time in this court appellant asserts that it is not shown by the transcript that any of the formalities necessarily attendant upon the calling of a special term of the district court were observed in reference to .the trial term. No such question or plea was made in the lower court, and to raise such an issue here a different and’ stronger showing would be necessary,, Special terms of the district courts are legal and authorized by statute, and their decisions have often been upheld by this court.

The evidence in this case, if believed by the jury, would seem ample to support the conviction. The witness offered by the state affirmed his purchase of 6 gallons of whisky from appellant. Appellant denies making the sale. Eor the defense two witnesses were introduced besides appellant. Mr. Finley testified that in the latter part of May, 1922, he was with appellant in Abilene, and some man introduced Knight to them. Witness says that later some one mentioned that if they needed anything to drink Knight could probably tell them where they could get it. He also affirms that Knight offered to sell him some whisky. This witness does not state who mentioned the fact that if they needed anything to drink Knight could probably tell them where they could get it. For aught we are informed by the testimony of this witness the person Who made this statement might have been appellant himself. If the testimony of Knight he true, and he had theretofore bought six gallons of whisky from appellant, it would not seem improbable that appellant might be able to impart such information. Defense witness Lee stated that he was present on the occasion in Abilene when some one introduced Knight to him. Mr. Lee gives no testimony whatever as to any one saying, that if they needed anything tó drink Knight could probably furnish it. This is the substance of the testimony introduced for the defense, aside from thát of the appellant himself. Notwithstanding he seems to have lived in the country for a good many years, no effort was made to show his reputation or standing in the community. The jury are the judges of the credibility of the witnesses and the weight of their testimony, and this court rarely disturbs a verdict after the jury have passed on these questions which are peculiarly within their province.

Finding no error in the record, an affirmance must be ordered.

On Motion for Rehearing.

The only contention in this motion is that the transcript does not show the authority by which, or the manner in which, the court below called the special term during which this trial was had. Our statute, article 929, C. C. P., goes no further than to require that the transcript contain all of the proceedings in the. case. For an order of the court made prior to the convening of the trial term or contemporaneous therewith, to become an issue in any particular case, it would be necessary to raise such issue during the trial of that case and make a record thereof in the court a quo. Ours is not a nisi prius court, and we are permitted to hear evidence in no matter save one touching our own jurisdiction, and matters presented here must appear in the record ordinarily.

Appellant was charged with a felony. The district court alone has original jurisdiction in felony cases. He was indicted by a grand jury of Jones county, apparently at a regular term of the district court of said county, for an offense committed therein. At a special term' of the district court in and for the same county he was thereafter convicted, as is fully set out in the caption to the transcript in the case before us. He appeared and went to trial without objection to anything connected with the convening of said term. He raised no such question in his motion for new trial, and attempts to raise it for the first time here. In Wilson v. State, 87 Tex. Cr. R. 546, 223 S. W. 221, we said:

“We are compelled to presume that all necessary steps were taken in order to make said special term legal, in the absence of any pleading or proof to the contrary, in the court be-. low.”

We think, this sound and applicable.

None of the authorities cited by appellant refer to or discuss what the transcript should show. As touching the validity of a special term of court convened without notice, publication, or written order, see Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191, and authorities cited in Hickox v. State (Tex. Cr. App.) 253 S. W. 825.

The motion for rehearing will be overruled. 
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