
    SMITH v. STATE.
    (No. 8562.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1925.
    Rehearing Denied May 20, 1925.)
    1. Criminal law <&wkey;597(l) — Refusal of continuance for absence of witness held not abuse of discretion, in view of testimony given during trial.
    In prosecution for sale of liquor, refusal of continuance for absence of defendant’s wife held not abuse of discretion, in view of evidence, including testimony of defendant himself, that transaction with purchaser did not take place in wife’s, presence.
    2. Criminal law <&wkey;596(3) — Refusal of continuance for absence of witness whose testimony would have been wholly impeaching held not abuse of discretion.
    Where record shows no predicate laid for impeachment of witness and testimony of absent witness would have been wholly impeaching in its nature, refusal of continuance was not abuse of discretion.
    3. Criminal law <&wkey;608 — Refusal of continuance held not abuse of discretion, where no verification -of cause of witness’ detention attached.
    Where no verification of cause of detention of absent witness was attached to motion for continuance, overruling of motion was not abuse of discretion.
    On Motion for Rehearing.
    4. Criminal law &wkey;>l 134(10) — Whether court erred in denying continuance for absence of witness determined, from application in light of facts proved on trial.
    Whether court erred in denying continuance because of absence of witness must be determined from the application for continuance in the light of the facts proved on the trial.
    Appeal from District Court, Stonewall County; W. R. Chapman, Judge.
    Ben Smith was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    C. P. Chastain, of Hamlin, for appellant.
    Tom Garrard, State’s Atty., and Grover .C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of three years.

The witness Clark testified that he went to the home of the appellant and purchased from him two quarts of corn whisky, for which he paid him either five or six dollars.

The witness Dodson testified that he saw Clark at the time of the transaction in question, and that he appeared to have been drinking. He heard him ask the appellant if he had any whisky, -or say to him that .he (Clark) wanted to buy some whisky. The witness saw them go to the lot together, and saw appellant come back later with a check which he said Clark had given him for the whisky. The witness saw the check. He could not read it, as he was not good at reading. Appellant did not say that he had sold any whisky to Clark, but said that .he gave him some whisky; that Clark wanted to pay for it, but he would not take the money; that his reason for taking the check was that Clark said he wanted to pay wherever he went.

The indictment was filed October 10, 1923. The case was tried on the 23d of that month. A motion for a continuance was filed and overruled on the day that the trial began. It contained an averment that on the 16th day of October, the issuance of a subpoena had been requested to Dawson and Jones counties for the witness D. E. Dye, and on the 17th of October for the wife of the appellant. By his wife he expected to prove that she was at the home of appellant at the time that the witness Clark arrived; that he had been drinking, and “she knew that the defendant did not sell him intoxicating liquors.” Her home was at Aspermont in Stonewall county. Subpoena was served on her on the 19th of October. On' the 20th of that month, she went to Abilene in Jones county, intending to return in time for the trial; but, according to the telegram received by the appellant from another person, she was detained on account of the illness of her son, whom she was visiting in-Abilene.

According to the testimony of the appellant developed upon the trial, the transaction with Clark did not take place at the house, but at a lumber pile about a hundred yards or more from his house; that his wife did not go to the place where Clark got the whis-ky. Quoting the appellant, he said:

“I told him to help himself. X had to go back to the house. My boy was awfully sick, and I needed to be at the house. My boy had pneumonia. Mr. O’Neal had the flu.”

Appellant’s testimony seems to have been at variance with the averment in the motion, that his wife was present at the interview between himself and Clark, or, at least, at the time the whisky was gotten. Clark testified that he did not remember whether he paid the ’ appellant with money or with a check. Appellant also testified that when Clark came to his house, he had been drinking; that appellant was in the yard cutting wood. Clark asked him if he had something to drink. Appellant told him he had some whisky down at the lot. They went to the lot, and after taking several drinks, Clark said he wanted a little for Christmas. Appellant said he would let him have it. From the appellant’s testimony we quote:

“By that time the old man was pretty drunk. He says, ‘I want to pay you for it.’ I says, ‘No, ' I don’t want no pay for it.’ I says, ‘Just help yourself,’ and the old man says, ‘No, X am going to pay you,’ and he got out his check book and scribbled a check that I couldn’t read and my wife couldn(t read; I just done that to satisfy the old man. I didn’t want him to pay for the whisky. I done that just to satisfy him. * * * I didn’t want the old man there drinking and carousing around and cutting up, because I necessarily needed to be at the house. I destroyed that check; I never collected it. I told him I wouldn’t sell him any whisky.”

The motion for new trial is not supported by the affidavit of either .the witness Dye or the appellant’s wife. Dye’s testimony was wholly impeaching in its nature, and the record shows no predicate laid for impeaching Clark.

It is to be noted that the indictment was filed on the 10th of'October. Subpoena was issued for the appellant’s wife on the 17th and served on the 19th of that month. The case was set for the 23d. Appellant’s wife went to Abilene on the 20th. According to the motion, appellant was informed that she was detained by the illness of her son. This information seems to have come to him from a telegram. No verification of the cause of the detention is attached to the motion, and we think the record is not'such as to warrant the holding that in overruling the motion the learned trial judge abused his discretion.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In oral argument defendant urges that we were in error in sustaining the lower court in denying continuance based on the absence of defendant’s wife. That must be determined from the application for continuance in the light of the facts proven on the trial. The only thing claimed in the application that the wife would have sworn to was that “prosecuting witness was drinking and that she knew defendant did not sell him intoxicating liquor.” Further on in the application, it is averred that defendant tore up a check in his wife’s presence; but nowhere is it alleged that the wife would swear to that fact, nor to any other relative to the check.

The motion for rehe¿ring is overruled. 
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