
    FORRESTER v. STATE.
    (No. 7488.)
    (Court of Criminal Appeals of Texas.
    March 7, 1923.
    Rehearing Denied June 27, 1923.)
    1. Criminal law <3=595(4) — Denying continuance for absent witness, when evidence was immaterial, held proper.
    Where one witness named in application for continuance was present but was not used, and the facts attributed to an absent witness were not material, denying application was proper.
    2. Criminal law <@=l 171(1) — Remark of district attorney while defense was interrogating jury panel held to present no ground for reversal.. . '
    Where defense was inquiring of the jury panel whether they belonged to Ku KIux or the Citizens’ League or other organizations, while the pertinence of the remark of the district attorney that he would not ask a juror, on trial of a Mason, if "he was a Mason, that he had too much respect for the order to insult a man by asking such question, was not apparent, it presented no ground for reversar.
    3. Criminal law <g=!091 (I I) — Bill -of exceptions in question and answer form are not proper.
    Bills of exceptions in question and answer form are not proper.
    4. Criminal law <@=1092(11) — Court unauthorized to qualify bills of exception by statement of matters known personally transpiring outside courtroom and not during trial.
    Bills of exception cannot be qualified by a statement of matters known personally to the judge, which transpired out of the courtroom and not during trial.
    5. Criminal law @=>1163(2) — Incumbent on defense to show injury from admission of other evidence after request for peremptory, instruction refused.
    Where, after defendant’s request for peremptory instruction was refused, state was permitted to introduce other testimony, it was incumbent on defense, to have objection thereto sustained, to show injury thereby.
    6. Criminal law @=>687(2) — Evidence introduced at any time before close of argument.
    Introduction of testimony at any time before the close of argument is permitted under Texas practice.
    7. Criminal law @=>665(4) — Permitting witness, present after order to separate, to testify, within court’s discretion.
    Permitting testimony of a witness, present part of the time another witness was testifying, after rule to separate was called for, is within the trial court's discretion.
    On Motion for Rehearing.
    8. Intoxicating liquors @=>236(7) — Evidence supported conviction for possession of liquors for sale.
    In a prosecution fo'r possessing intoxicating liquor for purpose of sale, evidence held to support a conviction.
    9. Criminal laW @=>603(2) — Toi entitle one to continuance, averments -must be exact and definite.
    One asking for a continuance must show himself entitled to it by exact and definite aver-ments.
    Appeal from District Court, Callahan County; W. R. Ely, Judge.
    L. T. Forrester was convicted of possessing intoxicating -liquor for the purpose of sale, and he appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, and Otis Bowyer, of Baird,-for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Callahan county of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.

The evidence is amply sufficient to support the verdict. Under the provisions of our statute the district judge is authorized to call a special term of his court and to impanel a grand jury, as well as to proceed to try and dispose of cases on his docket. Appellant’s bill of exceptions No. 1 complains of the return of the indictment against him at a special term and by a grand jury then impaneled. There is a total lack of showing of any illegality of the calling of said special term, and the impaneling of said grand jury, and the return of said indictment.

Appellant has an application for continuance. The qualification of the trial court thereto shows that one of the absent witnesses named in said application for continuance was present at the trial but was not used as a witness. The facts attributed to the other absent witness do not appear to us to be of such materiality as to have called for the granting of the application.

The bill of exceptions complaining of the remark made by the district attorney, when appellant’s counsel inquired of the jury panel as to whether they belonged to the Ku' Klux or the Citizens’ League or other organizations, is not approved by the court. It appears from the qualification to this bill that the only thing that transpired was that the district attorney stated to the court, in arguing his objection to the questions being asked by appellant’s attorney, that he would not ask a juror on the trial of a -Mason if the juror was a Mason, that he had too much respect for the order of Masonry to insult a man by asking such question. The pertinence of the remark of the district attorney is not apparent, but presents no ground for reversal.

Appellant’s bills of exception Nos. 4 and 5 are multifarious, being in question and answer form and presenting a number of questions asked and objections made; the court being entirely unable to ascertain the particular ground of objection insisted upon and presented here. We call attention to the fact that one of said bills of exception is qualified by the learned trial judge by a statement of matters known personally to him which transpired out of the courtroom and not during the progress of the trial. This court could not accept or act upon such qualifications. If the trial courts desire to incorporate matters of that kind in the record, they must assume the attitude of witnesses and state them as such.

There is complaint of the refusal of a peremptory instruction asked on behalf of appellant, and also of the fact that after such refusal' the state was permitted to introduce other testimony. The bill of exceptions complaining of this matter does not make apparent the fact that appellant had permitted any of his -fitnesses to leave the courthouse, or that hé' was surprised by the introduction of such' testimony, or that he was unable to meet and overcome it. The trial courts necessarily' have large discretion in matters pertaining to the introduction of testimony. If appellant desired this court to sustain his objection to such proceeding, he‘should make it appear that he was injured thereby. The introduction of testimony at any time before the close of the argument is permissible under our practice. The same rule of discretion in the trial court applies to the testimony of 'a witness who was in the courtroom a part of the time another witness was testifying, and whose testimony was allowed over the objection that the rule had been called for. The mere fact that a witness testifies who has not observed the rule, and that he may have heard all or part of the testimony of some other witness, would not be sufficient ground for the rejection of the testimony of the witness. It is not made to appear that the testimony heard by'said witness was in relation to the same matter about which he testified, or that there was any likelihood of his being influenced thereby, or that there Was any intentional violation of the rule. Unless some of these things are made to appear, this court could not appraise the value of such objection.

We have examined and considered each of the complaints made by appellant, and, finding no error in any of them, the judgment of the trial court will be affirmed.

On Motion for (Rehearing.

Appellant reviews the testimony and presents same as supporting that part of his motion for rehearing, based on his claim that the testimony is not sufficient to support the judgment. We have again carefully -examined the record. -Appellant was tried on August 4, 1922. The charge against him was possessing spirituous liquors, capable of producing intoxication, on or about July 26th of said year. Corley swore that he was arrested on a certain Wednesday, and that from the Sunday night preceding he had sold choc beer and whisky at a point a mile and a half or two miles east from Cross Plains; that three or four days before his arrest he picked up appellant at a drink stand a mile and a half or two miles east of Cross Plains, and the two went to Pioneer and back. During the trip appellant asked him if he had ever run a drink joint. When they got back they found a man named Wynn at a ear near the drink stand. Appellant went over and talked to Wynn. Wynn called witness. The conversation had between them is not in evidence. Witness then proceeded to sell whisky and choc beer, of which he found a quantity on hand at a place near said drink stand. On the Monday following appellant and Wynn were together at said place. Witness laid down the money he had taken in on a counter. On Tuesday night appellant was there and witness again turned over the money taken in, but says he does not remember to whom he gave same. Another witness swore that 20 or 30 days prior to this trial he built the little house, which apparently is the one Corley refers to as the drink stand, for appellant. Appellant paid him for it. Another witness swore that a day or two before the arrest of Corley appellant told witness .that he had a stand out east of Cross Plains, that the whisky was his, but that he and Corley were partners in the choc. Other witnesses state that C'orley sold whis-ky and beer at said place prior to his arrest. We have stated these facts to demonstrate the sufficieney of the testimony to show that appellant had in his possession the spirituous liquors found by the officers in the possession of Corley at the time of his arrest on the Wednesday referred to. Corley’s testimony indicates that the stuff he took charge of was about 150 feet from the little house or stand; that he did not take charge of what was inside.

Appellant again insists that it was error to overrule his application for continuance to secure the testimony of one Blackburn. There was no effort made by appellant to show what had become of the subpoena issued by him for Blackburn, and numerous authorities might be cited holding that one asking for a continuance must show himself entitled to it by exact and definite averments. Nothing in the statement of facts in any wise refers to or mentions Blackburn. Corley, whose testimony was evidently given with reluctance, does not claim that while he was at the place selling the choc beer and whisky he saw any man named Blackburn, or that any such person was ever present or attempted to exercise any control over the whisky and choc beer, or ¿aimed any of the proceeds resulting from the sale thereof. In this condition of the record we do not think the learned trial judge erred in refusing the continuance.

Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled. 
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