
    SPAIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1911.)
    1. Criminal Law (§§ 595. 1166) — Appeal and Error — Harmless Error — Continuance fob Absent Witness — Materiality of Evidence.
    Where the facts that the defendant alleged could have been proved by an absent witness were not material, and where the witness for whose testimony the continuance was sought testified on the motion for a new trial that she would not have so testified, the overruling of an application for continuance is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323, 3111; Dee. Dig. §§ 595, 1166.]
    2. Criminal Law (§ 369 — Evidence—Other Offenses — Sale of Liquor.
    In prosecutions for the sale of intoxicating liquors, proof of other and different sales is improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. § 369.]
    3. Criminal Law (§ 1114) — Appeal—Questions for Review — Limitation by Bill of Exceptions.
    Where a bill of exceptions is qualified by the trial judge as to the evidence and is filed by defendant on appeal, defendant thereby accepts the bill as qualified and is limited to the-review of questions shown by the bill as filed.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1114.]
    4. Criminal Law (§ 823) — Instructions — Curing Error.
    An erroneous instruction is cured by a correct instruction covering the same subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1992; Dec. Dig. § 823.]
    Appeal from District Court, Limestone-County; H. B. Daviss, Judge.
    J. T. Spain was convicted on a charge of violating the local option law, and he appeals.
    Affirmed.
    See, also, 128 S. W. 904.
    John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

The appellant was indicted, tried, and convicted in the district court of Limestone county, charged with violating the local option law, and sentenced to one year’s confinement in the penitentiary.

1. The appellant complains that the court erred in overruling his application for a continuance. We have examined the record: carefully, and we do not see that the testimony that appellant alleged could have been proven by the absent witness would have-been material. In addition to this, the witness, for whose testimony the continuance was sought, testifies on the hearing of the motion for a new trial that she would not have so testified.

2. In hill of exception No. 2 appellant complains that the state was permitted to prove by the witness Henry Tatum that he had purchased whisky from appellant at another and different time than that alleged in the indictment. This court has held that, in prosecutions for the sale of intoxicating liquors, it is improper to admit proof of other and different sales. In this case, however, the judge trying the cause qualifies, the bill in such way as to show that such testimony was not admitted, saying “the state did not offer to prove, nor did it prove, by the witness Tatum that he had purchased intoxicating liquor from defendant Spain at another and different time from that alleged in the indictment.” The appellant accepts the bill with this qualification and files it, and he cannot now complain of the qualification. Briscoe v. State, 27 Tex. App. 193, 11 S. W. 113; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561.

3. The other error assigned: “The court erred in permitting the district attorney to testify and impeach the testimony of the witness Spruill, and in not charging the jury not to consider such testimony, except for the purpose of arriving at the credibility of the witness and the weight to be given his testimony” — is answered fully by the sev-' enth paragraph of the court’s charge, wherein a correct charge is given limiting the testimony.

The judgment is affirmed.  