
    JORDAN v. STATE.
    (No. 10838.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    f. Indictment and information <&wkey;l76 — Date alleged in indictment for transporting intoxicating liquor is not material, if within statutory period of limitation.
    The date alleged in an indictment for transporting intoxicating liquor is not material, if it is within the statutory period of limitation.'
    2. Crimina! law <&wkey;608 — Refusal of continuance was proper, where controverting affidavits showed there was no likelihood absent witness would testify as expected (Vernon’s Ann. Code Cr. Proc. 1925, art. 757).
    In prosecution for transporting intoxicating liquor refusal of continuance because of absence of witness was proper, where, from controverting affidavits filed by the state under Vernon’s Ann. Code Cr. Proc. 1925, art. 757, there was no likelihood that absent witness would testify as defendant expected him to.
    Appeal from District Court, Marion County ; R. T. Wilkinson, Judge.
    Arthur Jordan was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    P. G. Henderson and J. H. Benefield, both of Jefferson, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The record contains but one bill of exceptions. Appellant applied for a continuance. The indictment alleged the transportation of intoxicating liquor on May 1, 1925. Appellant alleges in his application that he had prepared himself for trial on the supposition that the state would rely on the date alleged, and he had witnesses to prove an alibi. He further shows that he learned on the morning of the trial that the state would rely on witnesses to show that he transported-the liquor on May 1, 1924, a year before the date alleged. The date alleged is not material, if within the statutory period of limitation. He asked a continuance because of the absence of one Bennett, whose testimony does not seem to be material to the proposition of transportation of the liquor in question on May 1, 1924; also because of the absence of one Dee Cotton, by whom he expected to prove as follows:

“That, if the whisky was transported as alleged in the indictment, same occurred after May 1, 1925, and that said Dee Cotton was the owner of the car, and that Arthur Tordan (appellant) was only a guest in the car.”

Process for Dee Cotton had been procured and served upon him on behalf of the state in 1925. The trial of this case was in November, 1926. Both the state and the accuse# had process issued for Cotton in November, 1926, which was returned not served; the return upon one subpoena stating that thr” witness was out of the county, and the return upon the other stating that witness wnr in Childress county. Appellant sought a nev trial because of the refusal of his applies tion for said continuance. This applicatior was controverted by the state, and to its traverse was attached an affidavit of the county attorney, in which he .set up that the absent witness Dee Cotton had appeared before the grand jury at the time this indictment was returned, and had there testified that he was present in Marion county at the time and place fixed by the state witness Pruitt as that on which appellant transported intoxicating liquor in 1924, and that said witness Cotton had testified .before.said grand jury that he saw appellant drive a car up to a certain camp and títere deliver to a negro named Ben certain whisky, and that he saw said negro Ben deliver to appellant money. Our statutes authorize the state to contest appellant’s motion for new trial. See article 757, Vernon’s O. 0. P., and authorities cited. Said statute provides that the court may hear evidence by affidavits or otherwise in determining the issue made by the traverse of such application. It thus appearing that there was no likelihood that the absent witness would give the testimony expected from him, as stated in the application, the refusal of the application and' of the motion for a new trial were proper.

Finding no error in the record, the judgment will be affirmed. 
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