
    FRANK SMITH v. STATE.
    No. A-5850.
    Opinion Filed Dec. 11, 1926.
    (251 Pac. 507.)
    
      M. Bristow, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Frank Smith, plaintiff in error, here referred to as the defendant, was, by a verdict of a jury, found guilty of the illegal sale of one-half pint of whisky, with his punishment assessed at a fine of $50 and confinement in jail for 30 days.

Two young men, visiting strangers in Carnegie, claim they made inquiry about where they could get whisky and were referred to the defendant, whom they afterwards approached and the sale and delivery followed.

The exact hour of the commission of the offense was uncertain. A motion for a continuance was interposed on account of the absence of two witnesses, who would give testimony corroborating other testimony tending to establish the presence of the defendant elsewhere at a particular hour of the day. The court did not abuse his discretion in refusing this application, because the evidence sought was of cumulative nature and of uncertain probative force.

Two witnesses testified that they purchased this whisky from the defendant. There was evidence indicating that one, or possibly both, of the state’s witnesses were under the influence of whisky when first seen by the officers. This condition may have arisen from the consumption of the whisky here in issue, or liquor obtained from some other source. Be that as it may, the weight of the testimony was for the jury.

The defendant claims that evidence that should have been introduced in chief was withheld and introduced in rebuttal. Evidence received out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.  