
    GAINES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 31, 1911.
    Rehearing Denied June 23, 1911.)
    1. Ceiminal Daw (§ 603) — Continuance-Absence of Witnesses — Requisites of Application.
    An application for a continuance on the ground of a'bsence of a witness, which fails to allege that the witness was not absent by accused’s procurement or consent, is deficient on its face.
    Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    2. Criminal Daw (§ 1090) — Appeal—Rulings on Application for Continuance-Bill op Exceptions.
    Refusal of a continuance is not reviewable, in the a'bsence of a bill of exceptions reserved to the refusal.
    [Ed. Note. — For other eases, see Criminal Daw, Cent. Dig. § 2S12; ;Dec. Dig. § 1090.]
    3. Criminal Daw (§ 369) — Violation op Do-cal Option Daw — Evidence—Admissibility.
    Where, on a trial for violating the local option law, the question of system of accused was not in issue, and the evidence on the issue of a sale of whisky by accused to prosecutor was conflicting, evidence of the delivery of whisky to accused three months before the alleged sale was inadmissible, because disconnected with the charge.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ S22-824; Dec. Dig. § 369.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    John Gaines was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    F. M. Ball, for appellant.
    C. E. Dane, Asst. Atty. Gen., for the State.
    
      
       For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, and his punishment assessed at a term of two years’ confinement in the penitentiary.

The state’s witness’ testimony shows that he went into appellant’s room. The room was situated upstairs, and was claimed by appellant to be his place of residence. This witness testified that, when he went in the room, he found appellant and two women, a Mrs. Preston and Mrs. Franks, and bought a pint of whisky from appellant, for which he paid 75 cents. He took the whisky and went downstairs, and immediately upon reaching the street was arrested by the sheriff and taken before a court. The sheriff testified that he took charge of the witness as soon as he came down on the street, and found a pint of whisky upon his person. Appellant himself testified, as did Mrs. Preston, that they were both in the room at the time the witness came; but they both deny the sale ■transaction. Mrs. Franks was not used as a witness, on account of being absent and sick. The testimony is in sharp conflict as to whether the sale occurred or not, thus leaving it as a matter peculiarly within the province of the jury to decide as to the credibility of the witnesses and the weight to be given their testimony.

1. Appellant filed an application for a continuance. It is deficient on its face, .by failing to allege that the witness was not absent by his procurement or consent. This is mentioned because, if the refusal of the continuance could be reviewed, this would show that it is fatally defective; but, there having been no bill of exception reserved to the refusal to continue the case, the supposed error in refusing this continuance will not be revised.

2. There was some contention in the motion for a new trial over the qualification of one of the jurors. It is unnecessary to go into a discussion of that matter, in the light of the disposition of another question in the case.

3. As mentioned in the statement in the beginning of the opinion, the issue was sharply and incisively made before the jury as to whether there was or was not a sale. The state’s case makes a sale clearly and unequivocally. Appellant’s testimony denies it equally as strongly. The state introduced three witnesses, Paige, Jones,,and Gray, who testified that in August previous to this alleged sale, which occurred in November, they had carried whisky from the depot, in the town of Texarkana, either to appellant’s room or some point designated by him, and at least one of them testified that he had gone from Texarkana to Fulton, Ark., and purchased whisky for appellant, bringing it home in a suit case. It is unnecessary to go into a detailed statement of the testimony of these witnesses. Several objections were urged to the introduction of this evidence, which, we think, are well taken. The question of intent or system, or the connection of appellant with the particular transaction, was not an issue in the case. It was a positive, unequivocal sale, or the transaction did not occur. These matters occurred long prior to the time of the sale, and were in no way connected with it, and served no purpose in the case, except to prejudice the minds of the jury against appellant, by reason of the fact that he was shipping whisky into the town of Texarkana and carrying it to his room. Where there Is an alleged sale, denied on one side and proved by positive evidence upon the other, and the issue is sharp as to whether the sale occurred, these extraneous matters are not permitted to get into the trial.

For this reason, we think the judgment should be reversed, and the cause remanded for another trial; and it is accordingly so ordered.  