
    FLOWERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 18, 1912.
    Rehearing Denied Jan. 15, 1913.)
    1. Chiminal Law (§ 1086)— Appeal — Objection Below — Necessity—Continuance.
    Where there is no motion for a continuance, nor exception to the overruling thereof, and it is only complained of as error in the motion for new trial, the court cannot review it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2772, 2794; Dec. Dig. § 1086.]
    2. Intoxicating Liquoks (§ 148) — Offenses — Carrying on Business.
    A party may be guilty of engaging in the business or occupation of selling intoxicating liquors in local option territory without obtaining a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 148.]
    3. Witnesses (§ 305) — Pbivilege—Waiver —Recalling Dependant.
    The state has a right to recall a defendant, who took the stand in his own behalf, for further examination, as against the objection that he cannot be compelled to testify against himself.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1053-1057; Dec. Dig. § 305.]
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    Charlie Flowers was convic-ted of crime, and he appeals.
    Affirmed.
    M. B. Briggs, C. E. Florence, and Maberry & Maberry, all of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, prosecuted, and convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years confinement in the state penitentiary.

In his motion for a new trial appellant complains that the court erred in not granting him a postponement or continuance on account of the absence of two witnesses. There is no such motion in the record, if any was made, and no exception reserved to the aetion of the court in overruling it, if one was made; consequently it is not presented in a way we are authorized to review it. But if made, and the defendant expected to prove by them what he states in his motion for new trial, in the light of the evidence on the trial such testimony would be wholly immaterial. The complaint as to the indictment has been frequently passed on by this court and held adversely to his contention. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Nelson v. State, 61 Tex. Cr. R. 55, 134 S. W. 218; Alexander v. State, 61 Tex. Cr. R. 370, 137 S. W. 685; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073.

In a special charge he requested the court to instruct the jury “that, to engage in the occupation of selling intoxicating liquors in local option territory, the party selling must procure a license and enter into bond to sell such liquor as a druggist,” etc. This is not the.law, and the court did not err in refusing it. A party may engage in the business or occupation without obtaining a license.

The defendant took the witness stand, and testified in his own behalf, and was cross-examined, by the state. Later the state asked him to again take the stand that it might further question him. This was objected to by defendant on the ground that he could not be compelled to testify against himself. This question is fully discussed in an opinion by Presiding Judge Davidson in Mendez v. State, 29 Tex. App. 613, 16 S. W. 766, and it was there held the state had the right to recall a defendant for further examination, and this rule has always been adhered to. Por a list of authorities collated, see White’s Code of Criminal Procedure, §§ 966, 967. And our Procedure, in article 718, provides that evidence may be admitted at any time before the conclusion of the argument when the court deems it necessary to the due administration of justice.

There are other grounds in the motion for new trial, and we have carefully gone over each, and none of them present error. The evidence amply supports the verdict, and the judgment is affirmed.  