
    HILL v. STATE.
    (No. 8799.)
    (Court of Criminal Appeals of Texas.
    Oct 22, 1924.)
    1. Criminal law &wkey;>598(6) — Diligence in obtaining witnesses, entitling defendant to continuance for their absence, held lacking.
    Waiting till third day before trial for issuance of subpoenas for .witnesses living out of county held, lack of diligence, so that defendant was not entitled to continuance for failure of service on the witnesses and their consequent absence.
    2. Criminal law <&wkey;>l097(4) — Statement of facts necessary for determining materiality of any errors in admitting evidence.
    Statement of facts is necessary that materiality of any errors in admission of evidence may be determined.
    3. Criminal law &wkey;>753(I) — Refusal to retire jury for motion for peremptory instruction, not error.
    Refusal to retire jury while defendant made.a motion for a peremptory instruction of not guilty, which motion was at once overruled, held not error.
    4. Criminal law <&wkey; 1097(4) — Statement of facts necessary to review sufficiency of evidence.
    Statement of facts is necessary to review sufficiency of evidence.
    Appeal from District Court No. 2, Dallas ■County '; O. A. Pippen, Judge.
    Prank Hill was convicted of violation of liquor laws, and appeals.
    Affirmed.
    Oscar H. Calvert, of Dallas, for appellant. Shelby S. Cox, Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, .Asst. States Atty., both, of Austin, |or the State.
   DATTIMORE, J.

Appellant was convicted in criminal district court No. 2 of Dallas county of the offense of unlawfully manufacturing spirituous, vinous, and intoxicating liquor, and his punishment fixed at one year in the penitentiary.

We find in the record in this case no statement of facts, and for that reason are unable to appraise most, if not all, of the complaints made in the various bills of exception.

The indictment contained a number of counts, only one of which was submitted to the jury- The count submitted to the jury charged the accused in sufficient form, with the offense of manufacturing spirituous, liquor capable of producing intoxication.

The indictment was returned into court on the 8th of February, 1924, and on the 12th of the same month, appellant was arrested and made bond. The case was tried on March 20 thereafter. On March 17 appellant procured the issuance of subpoenas for a number of witnesses who lived outside of Dallas county. On account of the failure of service of said process upon the witnesses and their consequent absence, a motion for continuance was made by the accused. The facts stated above fall short of the diligence which would be required in order to call for favorable action.

Appellant’s bills of exception Nos. 3, 4, 5, 7, 8, 9, and 10 complain of the reception of evidence. The materiality of the errors complained of cannot appear to us in the absence of a' statement of facts. Bill of exceptions No. 11 discloses complaint of the refusal of the court to retire the jury while appellant made a motion for a peremptory instruction of not guilty. The court qualifies said bill by the statement that counsel could have presented his motion for an instructed verdict in writing, if he did not want the jury to hear what was said, and that, as soon as the court understood appellant’s motion he promptly overruled it. We observed no error in the action of the trial court, nor what was said by him in the presence of the jury. Complaint of the insufficiency of the evidence cannot be considered by us in view of the absence of a statement of facts.

The judgment of the trial court will be affirmed. 
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