
    RUSSELL v. STATE.
    (No. 5950.)
    (Court of Criminal Appeals of Texas.
    March 2, 1921.)
    1. Criminal law &wkey;>596(3) — Continuance not granted, where testimony of absent witnesses would be impeaching merely.
    Ordinarily a continuance will not be granted to procure the testimony of absent witnesses, where such testimony merely goes to the impeachment of the state’s witness.
    2. Criminal law c&wkey;603(2) — Application for continuance stating that it was not solely for delay, not sufficient.
    An application for continuance on the ground of the absence of witnesses, which ¡merely stated that it was pot made solely for delay, is insufficient, not complying with Code Cr. Proc. 1911, art. 608, subd. 5.
    3. Criminal law <@=wll5l — First application for continuance addressed to sound discretion of court.
    The truth of the first or any subsequent application for continuance on the ground of the absence of witnesses is addressed to the sound discretion of the trial court, and the denial of an application will not be held reversible error, unless the record leads to the conclusion that had the absent witness been present the result would have been different.
    4. Criminal law <&wkey;594(l) — Refusal of continuance on the ground of absent witness not error.
    Where defendant was charged with a violation of the liquor law, and the state’s witness testified that defendant was operating a still in a pasture, the denial of continuance on the ground of an absent witness, who, defendant asserted, would testify that about the time fixed by the state’s witness there was no still in the pasture, was not error, in view of the fact that no affidavit of the witness was attached to the motion, that subpoenas were not applied for until four days after defendant’s arrest, and that there was other testimony to support defendant’s contention that there was no still in the pasture.
    5. Criminal law <s=»597(2) — Denial of motion for continuance on ground of absent witness not error.
    Where defendant, who was charged with a violation of the liquor laws, applied for continuance on the ground of the absence of a witness who, he asserted, would contradict testimony of the state’s witness that defendant was operating a still in a pasture, the denial of the motion on the ground that the absent testimony, viewed in the light of the record, was probably not true, or would not have changed the result, held, not an abuse of discretion.
    6. Intoxicating liquors &wkey;>!32 — -State legislation not invalidated by Volstead Act.
    The National Prohibition Act, known as the Yolstead Act, did not invalidate the Dean Law, whereby the state of Texas forbade the manufacture of intoxicants, etc. '
    7. Intoxicating liquors <&wkey;>2l6 — Description of liquor in indictment sufficient.
    In a prosecution under the Dean Law, where defendant was charged with operating a still, the indictment, describing the liquor as spirituous, vinous, and intoxicating liquor capable of producing intoxication, was sufficient.
    8. Intoxicating liquors <&wkey;l7 — Legislature may forbid manufacture and sale of liquor intox-. icating or containing alcohol insufficient to intoxicate.
    There is nothing in the Constitution of the state of Texas which denies to the Legislature the power to enact laws forbidding the manufacture or sale of intoxicating liquor, or even liquors with insufficient alcoholic content to produce intoxication.
    9. Criminal law <&wkey;448(ll) — Testimony that witness saw defendant making whisky admissible.
    In a prosecution for violating the Dean Law, testimony that the witness saw defendant cooking or making whisky not inadmissible as an opinion, where the witness described the equipment and apparatus and stated that he partook of the liquor.
    18. Criminal law &wkey;>406(5) — Defendant’s statement he would kill any one who informed on him admissible.
    In a prosecution for manufacturing intoxicants in violation of the Dean Law, testimony that defendant stated he would kill any one who informed on him is admissible.
    11. Witnesses <&wkey;337(4) — Evidence that defendant was offering to procure liquor admissible for Impeachment.
    In a prosecution for manufacturing intoxicating liquor in violation of the Dean Law, it was proper to allow the state to ask defendant, while a witness, if he had not been offering to get whisky for people about the time of the offense, and, having answered in the negative, to show that he was making such offers.
    12. Intoxicating liquors <&wkey;233(2) — Question as to discovery of still near defendant’s premises admissible.
    In a prosecution for making liquor in violation of the Dean Law, it was proper to allow the state to ask defendant whether he recalled the discovery of a still at a point near his residence; it appearing that the still was taken by officers to the county jail and there identified by the state’s witness as the still which defendant had been operating.
    13. Criminal law <&wkey;406(5) — Evidence of defendant’s statement that if left alone he would pay his debts admissible.
    In a prosecution for manufacturing intoxicants in violation of the Dean Law, it was permissible for the state to ask defendant if he had not stated that if the officers let him alone he would be able to pay his debts, and, on de-, fendant’s qualified denial, to prove such statement.
    14. Intoxicating liquors &wkey;>233(2) — Permissible to ask defendant if still discovered was not one he was operating.
    In a prosecution for manufacturing intoxicating liquor in violation of the Dean Law, it is permissible for the state to ask defendant if the still discovered near his premises was not one he had been operating in a pasture, as testified to by the state’s witness.
    15. Criminal law <&wkey;i 144(12)— Presumption in favor of correctness of trial court’s ruling in reception of evidence.
    Where, over objection that it was immaterial, irrelevant, and prejudicial, the state, in a prosecutipn for violating the Dean Law, was allowed to ask whether defendant had not previously been indicted for violation of the liquor laws, and there was no statement in the bill of exceptions showing that the indictments were for felonies, the ruling must be deemed correct, for, if the bill of exceptions does not show affirmatively that evidence is not admissible, the presumption is necessarily in favor of the correctness of the trial court’s ruling.
    16. Witnesses &wkey;>394 — Evidence of good reputation of state’s witness for truth and veracity admissible in rebuttal of impeachment by contradictory statements.
    Where defendant, while the state’s witness was on the stand, laid a direct predicate for impeachment by proof of contradictory statements, and supported the attack by testimony of defendant’s wife as to contradictory statements, the witness anay be sustained by proof of his good reputation for truth and veracity.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    O. L. Bussell was convicted of manufacturing intoxicating liquor in violation of the Dean Law, and he appeals.
    Affirmed.
    Keeney & Dalby, of Texarkana, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMOBE, J.

Appellant was convicted in the district court of Bowie county of manufacturing intoxicating liquor in violation of the Dean Law (Acts Second Called Session, 36th Legislature, p. 228), and his punishment fixed at confinement in the penitentiary for one year.

When the case was called appellant asked for a continuance to obtain the testimony of several witnesses, most of whom appear to be for direct or indirect impeachment of the state’s main witness, one McCarty. This character of testimony is ordinarily not considered sufficient to justify a continuance. Branch’s Anno. Penal Code, § 324. The testimony of the absent witness Enscore was stated to be that he was familiar with the pasture, where the state’s testimony would seek to locate the illicit still claimed to have been used by appellant in this case, and that witness would testify there was nothing of the kind there. Three witnesses for the state bore positive testimony that on a day which they fixed at about March 1, 1920, they visited a still which appellant was running in or near a pasture of his, and that with said equipment appellant was making whisky. Appellant categorically denied these facts. One Berry Brown swore for appellant that during January, February, and most of March, 1920, he lived on appellant’s place, was very familiar with the pasture in question, was in said pasture nearly every day and especially along about the 1st of March, building fences, clearing up the land, going after the cows and other stock, and that he had never seen any sign of a still there. This witness, together with a number of others, testified that adjoining the home and residence of appellant was an open Bermuda grass pasture, and that along about the 1st of March, and before the leaves came out on the trees, a man anywhere in said pasture would be seen by people going along the public road or at or near appellant’s house. Many of these witnesses testified that they were familiar with said pasture at said time and passed by there frequently and saw no still or any signs thereof. Appellant’s wife also testified that she was familiar with said pasture and that at that time there was no still there.

The term of the trial court at which appellant was convicted did not expire until July 3d. The trial was early in May. It was stated in the application for a continuance that witness Enscore was temporarily absent from his home in Texarkana at the time of the trial. No affidavit of said witness as to what his testimony was or would have been was obtained during said term.. The application is defective, in that it is stated that it is not made solely for delay. This does not comply with the statute. Subdivision 5, art. 608, C. O. P. It is also statutory that the truth of the first or any subsequent application for continuance is addressed to the sound discretion of the trial court, and, even if the application conformed to the statute, we would not hold its refusal arbitrary, and reversible error, unless the record was in such condition as to lead us to conclude that had the witness been present the result would have been different. The testimony of the state’s witnesses was direct and positive as to the presence of the still and appellant’s connection, therewith, while aside from the testimony of appellant himself all of the evidence for the defense was more or less circumstantial. The state’s witness MeOarty located this still in question' as being in a pine thicket a short distance from the pasture about which most of the state’s witnesses testified. Said application contains the admission that appellant had not talked with the state’s witness, but had good reason to believe that he was going to locate said still by his testimony in'a certain pasture. The statement, therefore, as to the fact that the witness Enscore, if present, would deny the presence of any still at that point was necessarily a conclusion of the appellant and his attorneys, who prepared said application. After careful consideration of the entire testimony, both for the state and appellant, we are unable to believe that the testimony of another man to the effect that he was familiar with the pasture of appellant about the 1st of March, and that there was not a still there, would have affected the result, nor do we think the trial court exceeded his discretionary power in passing on appellant’s motion for new trial, to hold that the absent testimony, viewed in the light of the record, was probably not true, or that same would not have produced a different result. Browning v. State, 26 Tex. App. 432, 9 S. W. 770; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826; section 34 of notes to article 608, Vernon’s O. O. P. As an additional reason for this ruling appellant was arrested on April 29th and no subpoenas were applied for until May 3d. We do not think, the fact that the state’s witnesses were not indorsed on the indictment would be any excuse for failure to promptly apply for process.

We considered and passed on many of the questions raised in appellant’s motion for new trial in Ex parte Gilmore, 228 S. W. 199, recently handed down, and held that the act of Congress known as the Volstead Act (41 Stat, 305) is not in conflict with the Dean Law, and upheld the latter.

We think, also, that the words “spirituous, vinous, and intoxicating'liquor capable of producing intoxication,” as used in the indictment herein, is sufficient description of the liquor claimed to be manufactured.

Referring to another contention of appellant, it is our opinion that there is nothing in our Constitution which denies to the Legislature of this/ state power to enact laws forbidding the manufacture or sale of liquor intoxicating in character, or even a nonintoxicant with less alcoholic content than would be required to produce intoxication.

The statement of state’s witness-McCarty that at a certain time and place he saw appellant making or cooking whisky was not objectionable. Witness described equipment and apparatus in use at said time, and that he partook of the liquor that was being manufactured; also in another part of his testimony stated that appellant was operating and managing the still, the only objection to which was that same was not a statement of fact, but was the opinion of the witness; nor do we think it error to allow said witness to testify that appellant had stated to him that he would kill anybody who told on him for making whisky. In view of our practice of admitting evidence which is pertinent at any time before the conclusion of the argument, we do not think an objection to this testimony that it was upon redirect examination, and not in rebuttal, would constitute any very serious error under the facts. What we have just said as to the testimony of the witness McCarty applies to those bills of exceptions taken to the testimony of the witnesses Walter and Ben Long, each of whom testified to being present at said still and seeing appellant operating the same.

No error was committed in allowing the state to ask appellant, while a witness, if he had not been offering to get whisky for people about the time of this alleged offense. Appellant answered the question in the negative. We would deem it pertinent, if true, to show that at said time appellant was making the offer to sell or procure whisky to or for other people. The inquiry bore on the question of manufacturing liquor, and of showing that such manufacture was not for one of the purposes excepted by statute.

Appellant further complains because the state was allowed to ask him if he recalled the finding of a still by the officers near what was known as the Binkley place. It appears from the state’s testimony that the officers had found and taken possession of a btill on the Binkley place a short time after the date fixed by the state for the offense here charged against appellant. The Binkley place was at no very great distance from that of appellant. The. still captured on the Binkley place was carried by officers to the county jail, and was there identified by McCarty as the same outfit appellant was operating on the day of the instant offense. We think the question was permissible.

Nor do. we think any error was committed in allowing the state to ask appellant, and upon his qualified denial, to prove just what appellant said a day or two. after the said still was captured on the Binkley place, to the effect that, if they had not bothered him, he could have paid his debts this year. Said statement was susceptible of the construction that the capture of said still had affected appellant’s income and ability to pay his debts. He was not denied the right to make full explanation óf what he meant, and the question was one for the jury. We find no error in allowing the state to ask affiant, while a witness, if the still found by officers on the Binkley place was not the one he was operating when state’s witnesses McCarty and Long were present and saw him.

Appellant’s objections to the question propo'unded to him in reference to his having been indicted about a year before for violation of the liquor law of this state were that this was immaterial, irrelevant, and prejudicial. In view of the general character of the objection, we would be compelled to hold the evidence admissible under any fair presumption, in support of the court’s ruling that there was no statement in the bill of exceptions that it was not shown, otherwise than by this question, that the indictments referred to in said question were for felonies. If a bill of exceptions does not contain ■enough to show affirmatively that the evidence was inadmissible, our presumption is necessarily in favor of the correctness of the court’s ruling.

There was no error in admitting evidence of the good reputation for truth and veracity of state’s witness McCarty. Appellant laid a direct predicate while said witness was on the stand, and supported it by the testimony of appellant’s wife, showing contradictory statements of said witness. This opened up the question, and the witness may be sustained by proof of his good reputation. Section 184, Branch’s Anno. Penal Code. The same principle holds good as to appellant’s objection to allowing the state to prove the general reputation of the witness McCarty as a law-abiding citizen. Appellant had sought to show, both by questions to McCarty and other testimony, that said witness was himself a violator of the law by manufacturing liquor illegally.

There were a number of objections to the charge of the court, each of which has been examined and considered, but the discussion would present no new question, and would therefore be of no value. Appellant was ably defended, and his case carefully prepared, and each contention- has received our attention, but, believing that no reversible eror appears, the judgment of the trial court will be affirmed. 
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