
    POWERS v. STATE.
    (No. 5048.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.
    Rehearing Denied June 26, 1918.)
    Criminad Law ®=>599 — Surprise— Withdrawing Announcement oe Ready.
    In prosecution for sale of intoxicating liquors, court did not err in denying a motion to allow defendant to withdraw his announcement of ready for trial on the ground that previous to the trial the state witness had told defendant’s counsel that he had only bought liquor from defendant once at a certain place, but on the trial testified to another sale of liquor at a different place; there being nothing in the record to indicate that defendant could secure testimony, and no statement concerning truth of the second sale of liquor.
    Appeal from Nacogdoches County Court; J. P. Perritte, Judge.
    Tom Powers was convicted of violating the local option law, and he appeals.
    Affirmed.
    Harris & Harris, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was. convicted of violating the local option law, his punishment being assessed at a fine of $75 and 20 days’ imprisonment in the county jail.

The evidence for the state justifies the verdict of the jury, showing the sale as alleged. This is denied by appellant. During the trial it was developed by the state’s purchasing witness that he-made two purchases from appellant of whisky, one at the house where appellant was living, and the other at a different time on a creek somewhere in the town of Nacogdoches. On cross-examination of the state’s witness appellant’s attorney asked him questions with reference to a conversation occurring between counsel and state’s witness, laying a predicate for impeachment. This was admitted by the state’s witness in part and denied in part. A statement of these matters is not thought necessary further than will be observed later. This shows that defendant at this juncture, through his counsel, offered to withdraw his announcement of ready for trial for the reason that he was not prepared to meet the case testified by state’s witness. It is narrated in- the hill that defendant’s attorney talked with state’s witness before the case was called for trial; that at 5 minutes after 12 o’clock on the day of the trial, which took place at 1 o’clock, p. m., defendant’s attorney had talked to the state’s witness and ascertained from him, as the attorney states, that the sale was November 15th at the house where appellant was living or boarding with the woman Harriet Taylor; that he stated to counsel that he had bought no other whisky from the defendant except that which was bought in this house and paid for at the time. That state’s witness took the stand at 5 minutes after 1 o’clock, and testified to a different transaction than that which he mentioned to appellant’s counsel, which was the first intimation said attorney had that state’s witness would testify as he did with1 reference to the transaction at the branch or creek, and not at the house. The bill further recites that counsel stated to the court that he was not prepared to meet the state’s case as developed ; that he had brought his witnesses to meet the other transaction; that he was not aware of the fact that prosecuting witness would testify with reference to a sale of whisky on, the creek or branch; and that he had no opportunity to meet the development with reference to the transaction on the creek. The court signs this bill with this statement:

“Reference is made to the statement of facts as to the facts or matter complained of in this bill; also record shows case filed more than a year ago.”

There was no application made otherwise for a continuance than that stated. This was not sworn to by appellant, nor does be ask for a postponement, or state that be was surprised by tbis testimony. Tbe attorney’s statement comprises tbe whole matter with reference to the question of surprise. There is nothing in the record to indicate appellant could secure testimony, or that there were witnesses whom he could secure to show that the sale mentioned did not occur. The motion to withdraw the announcement was based on the fact that counsel was surprised at the witness testifying to the transaction on the creek. There was nothing stated or shown which indicated that the statements were not true and no fact mentioned which would be of any service to appellant. We do not mention the contradictions between the witness and counsel, believing that the showing is not sufficient to have entitled appellant to withdraw his announcement, and postpone or continue the case. This question is not a novel one. The authorities will be found collated in Vernon’s Ann. C. C. P., in notes under article 616. See, also, White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705. As this record presents itself, we are of opinion that the court did not err in refusing to permit the withdrawal of the announcement as requested by appellant’s counsel.

The judgment will be affirmed. 
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