
    GARLINGTON v. STATE.
    (No. 9024.)
    (Court of Criminal Appeals of Texas.
    March 11, 1925.)
    i. Criminal law <S=>594(I)— Denial of continuance to secure attendance of witnesses -for lack of diligence held not erroneous.
    Denial of continuance to secure attendance of eight witnesses held not erroneous, where six appeared, of whom two were not called, and expected testimony of two not present was same as that of the others, and though case was tried three weeks after defendant’s arrest he waited nearly a third of that time before applying for process, and there was no showing that two absent witnesses were ever served with process.
    2. Criminal law <®=»603(11) — Diligence in procuring witnesses whose absence is alleged as ground for continuance should be shown.
    Diligence in procuring witnesses whose absence is alleged as ground for continuance should be shown, not merely inferred.
    3. Criminal law <®=938(I)— Denial of new trial for newly discovered evidence held not erroneous.
    Denial of new trial for newly discovered evidence held not erroneous, where it was cumulative of that of other evidence given for defendant on trial, and did not appear to be newly •discovered, and if introduced would not have affected question of defendant’s guilt.
    Appeal from District Court, Jasper County; Y. H. Stark, Judge.
    S. P. Garlington was convicted of selling -intoxicating liquor, and he appeals.
    Affirmed.
    J. A. Mooney, of Woodville, J. B. Forse, of Newton, and G. E. Richardson, of Jasper, for appellant.
    Tom Garrard, State’s Atty., and Grover C. ‘Morris, Asst. State’s Atty., both of Austin, -for the State.
   LATTIMORE, J.

Appellant was convicted -in the district court of Jasper county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant has two bills of exception; one complaining of the refusal of a> continuance, the other of the overruling of his motion for new trial. Appellant had subpoenas issued for eighteen or twenty witnesses, some eleven of whom testified in his behalf at the trial. Others were present who did not take the stand. The application for continuance was based on the absence of eight witnesses, six of whom appeared and four of whom were used on behalf of the appellant. The sanie general statement of what appellant expected to prove, as stated in the application for continuance, was made in reference to all eight of the witnesses named. It thus appears that four of these appeared and testified, and that two named therein,, and by whom appellant alleged he could prove the same facts as by each of the others, were present and did not testify, and two by whom he expected to prove said facts were not present. The diligence shown was also not sufficient. The case was tried three weeks after appellant’s arrest, and it appears from the record that he waited nearly a third of that time before applying for any process. Nor is it shown that said two absent witnesses were ever served with process. Clark v. State, 61 Tex. Cr. R. 597, 136 S. W. 260. Diligence should be shown, not merely inferred. Carr v. State, 36 Tex. Cr. R. 390, 37 S. W. 426; Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 996; Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317.

A new trial was sought mainly for the refusal of the continuance, and because of alleged newly discovered evidence. The new witnesses were Hayes, Jugent, David Powell, D. L. Powell, and Reese. All appeared in support of the motion and gave their testimony, which has been carefully examined by this court. Same appears to be cumulative of that of other witnesses who testified for appellant on the trial, and most of it is not brought within the domain of newly discovered evidence, that is, the witnesses say they were with appellant at the place of the alleged sale of liquor about the time of the day that same was laid, and if these facts be true we are unable to see how appellant could meet the requirement of diligence and yet fail to have had said parties seen or summoned in his behalf upon his trial. Some of these witnesses averred that they saw a negro take some liquor or something in a sack to the car in which the state witnesses were. This fact was not denied by any witness for the state on the trial, but it was claimed that in addition to what was gotten from Powell the prosecuting witness Stott also bought a gallon of whisky from appellant. Testimony showing that the negro carried a gallon of whisky to said car would not seem to negative the state’s theory that in addition thereto, appellant -sold a gallon of whisky to Stott. In section 203 ’of his Annotated P. C., Mr. Branch, cites many cases in support of the theory, that newly discovered eumulativé testimony would not call for the granting of a new trial. See, also, the cases cited under section 8, subd 6, of article 837, Vernon’s Annotated O. C. P.

Believing that neither hill of exceptions reflects any error, and, being of opinion that appellant has had a fair trial, the judgment will be affirmed. 
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