
    JOHNSON v. STATE.
    (No. 11185.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied. Jan. 18, 1928.
    1. Criminal law &wkey;608 — -Defendant seeking continuance to secure witnesses had burden of showing diligence.
    Defendant seeking continuance to secure witnesses in his behalf had burden of showing that he exercised due diligence.
    2. Criminal law <&wkey;-598(6)— Defendant held not entitled to continuance to secure witnesses, where he delayed issuing subpcena until nine days before trial and did not seek additional process or try to obtain depositions after subpoena was returned.
    Defendant held not entitled to continuance to secure witnesses, where he waited several months after indictment before applying for process, and issued subpoena only nine days before trial and made no effort to secure additional process on witness in state after subpoena was returned four days before trial or to obtain depositions of witnesses out of state, since he did not exercise due diligence.
    On Motion for Rehearing.
    3. Criminal law &wkey;>554 — Jurors were not bound to believe defendant’s statement that he was making whisky for medicine.
    Jurors were not bound to accept statement of defendant that he was making whisky for medicine, in view of his self-interest?
    4. Intoxicating liquors <&wkey;236(19) — Evidence held to sustain conviction of possession of still for manufacturing liquor.
    Evidence held sufficient to sustain conviction of possession of still for manufacturing intoxicating liquor.
    Commissioners’ Decision.
    Appeal from District Court, Hansford County; W. R. Ewing, Judge.
    W. A. Johnson was convicted of possession of a still for manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Wakeman & Swearingen, of Spearman, and G. H. LaMar, of Texhoma, Okl., for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is the possession of a still for manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for three years.

Operating under a search warrant, officers discovered in a dugout in a barn a still, stove, and six barrels containing about 150 or 200 gallons of mash and some sugar. At the time the officers went to the place where the search was made, appellant was near the barn working on a truck. Appellant told the officers the still and mash belonged to him and directed them to the place where it was concealed. Officers destroyed most of the mash. Appellant demurred to their action, and stat- , ed that he needed it for medicine. Testifying in his own behalf, appellant admitted that he owned the still and mash and declared that the was preparing to manufacture whisky for medicinal purposes. He stated that he had been in ill health or a number of years, due to asthma, and that whisky taken as a medicine had been beneficial to him. Other witnesses testified that appellant had suffered from asthma for many years and that he had used whisky when he was suffering from the ill effects of the disease. Appellant stated that he brought no doctor to testify in his behalf for the reason that the only doctor he had had for several years was Dr. Lamar, who had been dead for a year or two.

The indictment was returned on the 20th day of October, 1926. The record does not disclose when appellant was arrested. The trial was had on the 23d of March, 1927, approximately five months after the indictment was returned. When the ease was called for trial on the 23d of March, appellant filed his first application for a continuance. The application was based on the absence of James Layton, alleged to reside in Sherman county, Tex., but who, as was stated in the application, was in Texas county, Okl., at the time of the trial, Fred Hodges, I. T. Mathis, and O. B. Dodson, who were alleged to reside in Texhoma, Texas county, Okl., and George Arnold, whose address was alleged to be unknown to appellant. It is shown by the application that, on the 9th of March, 1927, appellant caused the clerk to issue and forward a subpoena by mail to the sheriff of Sherman county, Tex., for the witnesses Layton, Hodges, Arnold, and Dodson. Said subpoena was returned by said sheriff on the 19th day of March, 1927, four days before the trial, showing that it had been served on O. B. Dodson and Fred Hodges; that it had not been executed as to George Arnold and James Lay-ton for the reason that Arnold was in Panhandle, Tex., and Layton was in the state of Oklahoma.

By bill of exception No. 1, appellant complains of the action of the trial court in ■overruling his said application for a continuance. The burden was upon appellant tó show the exercise of diligence' in support ■of his application. We are of the opinion that the facts hereinbefore stated conclusively show a lack of diligence on the part of appellant. He waited several months after the indictment was returned before he applied for process for the absent witnesses. About nine days before the case was called for trial he issued a subpoena for four of the witnesses, which was returned by the sheriff approximately four days before the trial. The sheriff’s return showed that one of the witnesses not served was in Panhandle, Tex., and, although appellant contended that the witness was material, he made no effort, during the four days that intervened between the return of the subpoena and the trial, to issue additional process for the witness. The two witnesses served lived in Oklahoma, and no effort is shown to have been made to take their depositions.

We have carefully examined all matters complained of by appellant, and find no reversible error.

The judgment is affirmed.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant makes the single point in his motion and argument in support thereof that the evidence was insufficient to support the verdict.

This court has often said that the jury are not compelled to accept as true any statements made by the accused, he manifestly being interested in the outcome of the case, and being affected by that most potent influence, viz., self-interest, in making his statements. One of the substantial arguments in favor of the retention of the jury system is that men who are just ordinary citizens, of like passions of the accused and supposed to review the weight of his testimony fairly and impartially, are thus called on to pass both on the weight of the testimony and the credibility of the witnesses. This jury may have believed it incredible that the accused would have the quantity of mash and paraphernalia found in his possession, for the sole purpose of making whisky for the personal use of the accused. They are not in any wise bound to accept his claim that he was making whisky for medicine. Several witnesses testified that they examined the coil, barrels, still, etc., found in his possession, and that it was equipment by the use of which intoxicating liquor could be made.

Where there is testimony direct and positive in the record Such as appears here, we are not at liberty to set aside the- verdict based thereon, on the ground that it has no sufficient support.

The motion for rehearing will be overruled. 
      @s>Eor other-eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     