
    KOGAR v. STATE.
    (No. 11612.)
    Court of Criminal Appeals of Texas.
    May 16, 1928.
    Reinstated and affirmed June 23, 1928.
    Rehearing Denied Nov. 14, 1928.
    W. W. Kirk, of Plainview, for appellant.
    Meade E. Griffin, Dist. Atty., of Plainview, and A. A. Dawson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN, J.

Tbe offense is possession of intoxicating liquor for tbe purpose of sale; tbe punishment confinement in the penitentiary for two years.

It appears from tbe caption of tbe transcript that tbe term of tbe court at wbicb appellant was convicted adjourned October 29, 1927. It appears from tbe transcript that appellant entered into recognizance on appeal November 2,1927. Thus tbe transcript shows that tbe court had adjourned at tbe time appellant entered into recognizance. A recognizance entered into after tbe expiration of the term is a nullity. Johnson v. State, 101 Tex. Cr. R. 560, 275 S. W. 1036; Articles 817 and 818, C. C. P. Appellant being enlarged on a void recognizance, this court is without jurisdiction to pass on tbe merits of tbe appeal. Warrick v. State, 99 Tex. Cr. R. 68, 268 S. W. 1118.

Tbe appeal is dismissed. Appellant is granted 15 days from this date in which to file proper appeal bond.

PER CURIAM. Tbe foregoing opinion of the Commission of Appeals-has been examined by the judges of the Court of Criminal Appeals and approved by tbe court.

On Motion to Reinstate Appeal.

LATTIMORE,' J.

Appellant makes a sufficient showing that tbe caption of the transcript herein incorrectly stated the day of tbe adjournment of tbe trial term. It now appears that tbe court below did not adjourn until November 5, 1927, and that tbe recognizance was made during tbe term. Tbe appeal Is reinstated, and tie case will now be considered on its merits.

We find two bills of exception in tbe record. The first complains of the overruling of appellant’s motion for a continuance. It appears that when the motion was presented the trial court heard evidence, which is incorporated in the bill, and from same we are of opinion no error was committed in the overruling of said motion. The witnesses named therein had not been served with process. The testimony heard supports the proposition that said witnesses went away from the county of the prosecution in order to assist appellant in an effort to get the case continued. Before leaving home the witness Whitely, chiefly relied on in said application, is shown to have stated that he knew nothing about the ease.

The second bill sets out the objection of appellant to the introduction of the testimony heard by the court upon the presentation of the application for continuance, the ground of objection being that defendant was not present when the statements were made by Whitely, and, further, that the testimony now heard was in the presence and hearing of the jury panel and therefore prejudicial to the rights of the accused. This bill is qualified by the statement of the trial judge, who says that when the witness who testified to the statement made by Whitely was giving testimony he was sitting near the judge’s desk in giving his testimony to the judge. It is further shown that during the examination of the jury panel on their voir dire none of them were asked if they heard the testimony of these witnesses, .nor whether such testimony would affect their verdict. No motion was made to quash the jury panel because they may have heard such testimony, nor was any challenge made to any juror because of such fact. The court approves the bill with the statement that it was presented to him after the adjournment of court, and states as follows: “No bill of exception was taken and filed during the term of court at which this case was tried.” The law now does not require such bill to be filed during the term. The bill presents no error.

The testimony seems amply sufficient to support the finding of the jury. The officers searched appellant’s premises with a search- warrant at which no exceptions are leveled and found many fruit jars hidden in various and sundry places around over the premises, and, according to the testimony of the officers, each of the fruit jars smelled of whisky. More than a quart and a half of the liquid itself was found in these containers.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

Appellant files an able motion for rehearing, claiming only that we erred in upholding the refusal of his application for continuance. We have again reviewed those matters in the record bearing on this question. The witnesses had not been subpoenaed. In connection with the motion for new trial the court below heard evidence which seems to fully support the proposition that one of said witnesses absented himself from the trial for the sole reason that he might thus enable appellant to get a continuance, and that before going away he said he knew nothing shedding any light on the case. The facts attributed to the other witness are so at variance with the testimony developed as to render it improbable that, had the witness been present, he would have given the testimony stated to be expected of him, and also to demonstrate the falsity of such testimony if given. It thus appears that the refusal of the continuance was within the discretion of the trial court, and that no abuse of such discretion has been shown. No affidavit of either witness was attached to the motion for new trial. As we interpret the record, the court below was willing to postpone the hearing of said motion for new trial to allow appellant time to get such affidavits, but such postponement - was not asked.

No merit appearing in the motion for rehearing, same will be overruled.  