
    WOODARD v. STATE.
    (No. 7741.)
    (Court of Criminal Appeals of Texas.
    June 27, 1923.
    Rehearing Denied Oct. 31, 1923.)
    1. Witnesses &wkey;>352 — Testimony that witness has sold, liquor properly excluded as tending to impeach him on an immaterial issue.
    In a prosecution for the unlawful sale of intoxicating liquor, the court did not err in excluding testimony that the alleged buyer sold liquor to another party, because it was an attempt to impeach a witness on an immaterial issue.
    2. Criminal law <&wkey;655(5)— No error to admonish counsel for repeating excluded question.
    No prejudicial error was committed, when the court admonished counsel before the jury for repeating a question whether prosecuting witness had sold liquor to other parties until the witness answered, after the court had ruled that the inquiry was improper,.
    3. Criminal law <&wkey;956(5)— No abuse of discretion in overruling a motion for new trial; no affidavit being .attached nor its absence explained.
    The court did not abuse its discretion in overruling a motion for new trial, asked because defendant’s wife, owing to illness, was absent, where, according to the motion for continuance, she would testify to an alibi, but no affidavit of the wife was attached to the motion for new trial, nor its absence explained.
    On Motion for Rehearing.
    4. Criminal law <&wkey;597(3)— No error in refusing to grant a continuance, where testimony of absent witness would not have influenced jury in returning verdiet.
    ■ Refusal to grant a continuance because of' absence of defendant’s wife, who was ill, and would testify that her husband was somewhere, else, when the alleged sale of liquor was made, held not error because, under the evidence,, her testimony probably would not have influenced the jury in returning their verdict.
    5. Witnesses <&wkey;331 l/h — No' error in excluding testimony that witness was drunk the night before offense was committed.
    In a prosecution for the illegal sale of liquor, the court did not err in rejecting evidence that alleged buyer was drunk the night before the sale, under the rule that drunkenness is material in affecting the credibility of a witness only when it stands in such proximity to the occurrence as will render it probable that his knowledge of such occurrence was affected by his drunkenness.
    —.itr,r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Haskell County ; W. R. Chapman, Judge.
    Charley Woodard was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    C. J. Henson, of Throckmorton, and A. J. Smith, of Haskell, for appellant.
    R. G. Storey, Asst.. Atty. Gen., for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The date of the offense is laid on or about the 9th day of November, 1922. Goben is named as the purchaser. He testified that he arrived at the town of Rule on the 2d of November, and left there on the 9th of that month; that on various occasions' between those dates he went to Townes’ blacksmith shop; that on one of his visits there he bought from the appellant a quart of whisky for which he paid him $7. This occurred, he ■said, about the-4th of November. His business was to buy whisky to entrap thé, offenders. He made a record of the date of the purchase. Another witness testified, that he saw the transaction, though he did not remember the date.

In instructing the jury, the court restricted the right to convict to a transaction occurring on the 4th day of November. Several witnesses testified on behalf of the appellant to the effect that Goben was drunk on the night of the 3d of November and also on the following day.

In several bills of exception complaint is made of the refusal of the court to receive evidence' that Goben was drunk between the 4th and 9th of November. We perceive no evidence rendering ■ relevant the inquiry touching the drunkenness-or sobriety of , the witness Goben after the date of the sale in question. His condition at and before that time was properly made an issue, as it might have affected, his credibility. There was evidence on both sides of that question.

As a predicate to impeach the witness Goben, appellant asked if he had not sold whisky to Ralph Lee on November 4th. This Goben denied. The court rejected testimony to show that Lee bought whisky from Goben on the date mentioned, because it was an effort to impeach the witness Goben upon an immaterial issue. We do not understand from the bill how the selling of the whisky by Goben -to Lee became pertinent. After the court had ruled that the inquiry was not a proper one, counsel, according to the bill as qualified, repeated the same question several times, and finally the witness answered it in the affirmative. The court reprimanded counsel and told the jury, that neither the question nor the answer should be considered. • It was not error for the court to exclude the testimony because it was immaterial. While a more appropriate time for the admonition of the counsel might have been chosen, the fact that it was done under the present circumstances does.not. impress us as being of such a prejudicial nature as would justify a reversal of the judgment. Redwine v. State, 87 Tex. Cr. R. 387, 221 S. W. 605.

To prove an alibi, the appellant sought to continue the case because of the absence of his wife. She was expecting to give birth to a child, and, according to the motion, would have testified that for six days preceding the 9th of November appellant was with her at their home about 12 miles distant from the place at which the sale was made. Her sickness at the time of the trial prevented her attendance. The court continued in session about a week after the verdict was rendered. The motion for new trial is not supported by the affidavit or testimony of appellant’s wife, nor is the absence of such verification explained. The circumstances do not indicate that, in overruling the motion for new trial, there was an abuse of the discretion of the trial judge. Hollis v. State, 83 Tex. Cr. R. 612, 204 S. W. 432; Walker v. State, 91 Tex. Cr. R. 507, 240 S. W. 538.

We find nothing in the record requiring a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

It is earnestly insisted, in the motion for rehearing, that error appears in the refusal of a continuance. The continuance was for appellant’s wife. It is stated in the application that she would testify that he was with her on the 9th of November, 1922, and each day for six days prior thereto, and all the time of each day. This would include the 4th of November, which was the day shown by the state witnesses as that on which the alleged sale of liquor was made, and to which day the charge of the trial court restricted the jury in considering appellant’s guilt. Reference is made in the opinion to the fact that the motion for new trial, based in part on the overruling of the application for continuance, was not supported by the affidavit of the wife. Examining anew the statement of facts, it appears that the city marshal of the town of Rule testified that he saw appellant in town on November 4th. The witness, upon whom reliance was made to show the sale of liquor, testified that he bought it from appellant on the 4th. 'Witness Lank-ford testified that he went with witness Goben and was present when the latter bought the liquor in question. Appellant’s witness Barton testified that on the 4th he saw appellant in the town of Rule and at Jim Townes’ blacksmith shop, that being the place where the state claimed the sale of liqu'or was made." We observe, in view of this testimony, that the'learned trial judge would have been justified in his conclusion that it was not error to refuse to grant the continuance, upon the further reasoning that, had the wife of appellant been present and testified that her husband was not in Rule on the day of the alleged sale, but was with her somewhere else, it would not be at all likely to have influenced the jury to return a different verdict. We discussed at some length, in the case of Grayson v. State, 91 Tex. Cr. R. 137, 236 S. W. 1110, rules applicable to the refusal of a first continuance, and held therein that no abuse of discretion of the trial court was shown. We think that discussion applicable to the instant case.

It is also insisted that we erred in upholding the action of the trial court in rejecting certain testimony to the effect that the prosecuting witness Goben was drunk on the night preceding the day of the alleged sale. In a case such as the one before us the effect of such proof could only have been as touching the credibility of the witness Goben in his narration of the facts transpiring in connection with the alleged sale. In his insistence upon this point appellant may have been misled by an inadvertent phrase in the original opinion, wherein we said that “His condition at and before that time was properly made an issue.” Manifestly the fact that one was drunk two days, or quite a length of time before an occurrence which he attempts to detail, could not have the accuracy of his relation of the events assailed or his credibility attacked by proof of the fact that he had been drunk at some time sufficiently long before that to enable him to have overcome the effects of such drunkenness. An examination of the record in this case discloses that the alleged sale was on the afternoon of November 4th, and we are unable to see the importance or weight to be attached to testimony of the fact that said witness was drunk about 9 o’clock the night before. The learned trial judge permitted the appellant to introduce all proof available upon the proposition that said witness was drunk on the day of the 4th, either at the time of or before' the alleged sale, and we observe that witnesses by whom, appellant sought to prove that the witness was drunk the night before also testified to the fact that he was drunk on the day of the alleged sale. We do not think the evidence as to drunkenness the night before, which was rejected, of such materiality as to call for a reversal of the case. We have examined each of the authorities cited by appellant, and conclude those relative to this question only to hold that evidence of drunkenness becomes material as affecting the reliability and credit to be given the testimony of the witness claimed to have been drunk, when the drunkenness stands in such proximity to the occurrence about which the witness attempts to testify as to make it reasonably probable that his memory or knowledge of such occurrence could have been affected by such drunkenness.

Finding no error in the former opinion, the motion for rehearing will be overruled.  