
    CLARK v. STATE.
    (No. 9546.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1926.
    Rehearing Denied Dec. 15, 1926.)
    1. Criminal law <&wkey;l099(6) — Under statute, court cannot allow filing statement of facts more than 90 days after notice of appeal (Code Cr. Proc. 1925, art. 760).
    Under Code Cr. Proc. 1925, art. 760, requiring statement of facts to be filed within 90 days after notice of appeal, court cannot allow filing within 90 days after adjournment of term, but more than 90 days after notice of appeal.
    2. Criminal law <&wkey;>l 118 — Denial of continuance cannot be held erroneous, where evidence is not properly before court.
    On appeal, averments in motion to continue must be considered in connection with evidence, and hence, in absence of evidence, denial of continuance cannot, be held erroneous.
    3. Criminal law &wkey;>586 — Grant or denial of continuance is within discretion of judge.
    Application for continuance is addressed to sound judicial discretion of trial judge.
    On Motion for Rehearing.
    4. Intoxicating liquors <&wkey;235 — In prosecution for manufacturing liquor, excluding testimony of medicinal use by defendant’s wife held not error.
    In prosecution for manufacturing intoxicating liquor, exclusion of testimony of defendant’s father that defendant’s wife was pregnant, and using liquor for- medicinal ‘ purposes, held not error.
    5. Criminal law <&wkey;595( 10)— Denial of continuance for absence of defendant's wife held not error, in view of showing of disqualification of wife as witness (Code Cr. Proc. 1925, art. ■ 711).
    In prosecution for manufacturing intoxicating liquor, denial of continuance for absence of defendant’s wife, who, it was alleged, would testify to medicinal use of liquor manufactured, held not error, in view of showing that wife was under indictment for same offense, and therefore disqualified under Code Or. Proc. 1925, art. 711.
    6. Criminal law &wkey;622(2) — Denial of severance which would have necessitated continuance held not error (Code Cr. Proc. 1925, art. 651).
    In prosecution for manufacturing intoxicating liquor, denial of severance, which would necessarily have resulted in a continuance, held not error, under Code Or. Proc. 1925, art. 651.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge. .
    Walter Clark was convicted of unlawfully manufacturing intoxicating liquor and he appeals.
    Affirmed.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt; M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offensé is the unlawful mánufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The statement of facts was filed within 90 days after adjournment of the term of court at which the trial took place, but more iban 90 days after the motion for new trial was overruled, and notice of appeal given. The court allowed 90 days after adjournment. However, the statute covering the matter restricted his authority to the allowance of 90 days after notice of appeal. See article 760, C. C. P. 1925. This court is not authorized to consider a statement of facts not filed within the space of time allowed by statute. See Bailey v. State, 104 Tex. Cr. R. 150, 282 S. W. 804; Johnson v. State, 104 Tex. Cr. R. 384, 283 S. W. 807.

We find nothing in the record bringing it within the rule stated in George v. State, 25 Tex. Crim. App. 229, by which the statement of facts might be considered, if the delay was not due to a lack of diligence upon the part of the appellant. See Clampitt v. State, 96 Tex. Cr. R. 149, 256 S. W. 272; Dyer v. State, 96 Tex. Cr. R. 304, 257 S. W. 902, and cases cited; also 2 Vernon’s Tex. Crim. Stat. p. 837, note 20.

In the record there is found a bill of exceptions complaining of the refusal of the court to continue the ease. The application for a continuance is addressed to the sound judicial discretion of the court. On appeal, the averments in the motion to continue are to be considered in connection with the evidence adduced upon the trial, so that the appellate court may determine, in the light of the evidence, whether the absent testimony was such as to show that, in- refusing to grant a new trial, there was an abuse of discretion by the trial court. Without the evidence heard upon the trial in the present case, this court is not able to' determine that in refusing to continue the case the court was in error. The precedents upon the subject are numerous. Many of them are collated in 2 Vernon’s Tex. Grim. Stat. p. 320, note 34.

Finding nothing in the record which would justify this court in ordering a reversal, the judgment is affirmed.

On Motion for Rehearing.

Our attention has been called to the fact that article 760, C. O. P. ■ 1925, did not become effective until September of that year, and that the statement of facts in the present case was filed within the time authorized by law and allowed by the trial court before article 760, supra, became effective, namely, on May 30, 1925. The statement of facts is therefore properly before this court for consideration.

From the testimony of the sheriff, it appears that in the kitchen in the home of the appellant there was found a still in operation in the nighttime; that the appellant and his wife were present; that the cook-stove was used in operating the still; and that whisky was in the process of making. The still had a capacity of about 25 gallons. On the premises were found three half-gallon jars full of whisky, and a quart jar half full of whisky. A barrel about half full of mash was found some distance from the house.

Appellant introduced no testimony save that touching his good reputation. He offered, however, the testimony of his father, to the exclusion of .which he complains by bill of exceptions. In the bill it is stated that the appellant offered to prove by the witness mentioned that on the date of the offense the wife of the appellant was in an advanced state of pregnancy, and that at the time was, and prior thereto she had' been, using intoxicating liquors for medicinal purposes. It is believed that in excluding this testimony no reversible error is shown. Standing alone, as it does in the present case, it is not thought sufficient to present as an issue that the whisky which was making at the time was for medicinal purposes. It is to be noted that there were three half-gallon jars of whisky. How long they had been made is not revealed by the testimony.

Appellant presented an application seeking to continue the ease because of the absence of his wife, who, it was alleged in the application, was in an advanced state of pregnancy, and unable to attend court. This the state met by showing that the wife was under indictment for the same offense, and was therefore not available as a witness in favor of the appellant. See article 711, O. O. P., 1925. Appellant introduced testimony showing that 'the indictment had been filed about the same time that his application for a continuance was made, and contended that it was not obtained in good faith, but to thwart his efforts to secure the testimony of his wife. The testimony of the grand jurors heard upon this subject was to the effect that the indictment had been found at a much earlier date, and upon facts similar to those touching the appellant’s indictment. The evidence heard was such as to justify the court in finding that the wife was disqualified as a witness for the defendant.

Appellant also sought a severance, but it being manifest that the granting of the severance would necessarily have resulted in a continuance, the court, under the statute, was right in refusing it. See article 651, O. O. P. 1925.

railing to find reversible error in the rec* ord, the court orders the motion for rehearing overruled. 
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      ©ssfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     