
    BRIDGES v. STATE.
    (No. 7638.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law <&wkey;>598(6) — Continuance should have been granted though subpoena served day of trial.
    Where defendant, living 10 miles from county seat, was arrested on Saturday afternoon, and on Monday came to the county seat to consult his attorney, who was. out of town, and did not return until late Tuesday evening, and subpoenas for witnesses to prove defendant’s alibi were served Wednesday morning, and case was called for trial on the same day, but the witnesses had not arrived, application for continuance should have been granted.
    2. Criminal law <§=>598(6) — Diligence held not so deficient as to warrant refusal of postponement.
    Diligence in not serving subpoenas on material witnesses until day of trial, four days after arrest, but as soon as defendant was able to see his attorney, held not so deficient as to warrant court in refusing to postpone the ease upon proof that witnesses could be secured within a short time, and record does not indicate that postponement would have prejudiced the state’s case nor interfered with court’s business.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    G. F. M. Bridges was convicted for unlawfully selling intoxicating liquor.
    Reversed and remanded.
    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 a period of 18 months.

The state’s testimony is to the effect that on the 16th day of September, 1922, appellant sold to one Artis Scott a pint of whisky.

The indictment was presented on the 23d day of September, and the trial took place on the 27th of that month. The appellant presented an application for a continuance to secure the testimony of a number of witnesses to support his theory of alibi. The witnesses resided in Nacogdoches county. Subpoena was issued for them on the 27th day of September. The delay in the issuance of subpoena was explained by the fact that the appellant was arrested at a distance of 10 miles from the county seat on Saturday afternoon, September 23d, On the following Monday he came to the county seat to consult his attorney. He found that he was out of the city, but was told that he would return on the following day. The attorney did return upon the following day, but not until late in the evening. On the following morning subpoenas for the absent witnesses were issued and served. The case was called for trial on the same day, but the witnesses had not arrived. The appellant, by another written application, requested a delay, and introduced proof to the effect that the witnesses resided in Nacogdoches county at a point about 20 miles east of the city, and could reach the courthouse by automobile within a short time; the road to their homes being a hard-surface highway. According to the averments, which are controverted, the attendance of the witnesses could have been secured within two hours. The testimony was material; supporting that of the appellant. The diligence, under the circumstances, was not so deficient as to warrant the court in refusing to at least postpone the case. Nothing in the record indicates that a postponement would have resulted in a continuance, or in any manner prejudiced the state’s ease or interfered with the business of the court.

Because of the refusal to grant the appellant’s motion for a continuance, the judgment is reversed, and the cause remanded.  