
    BARNES v. STATE.
    (No. 4015.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.
    Rehearing Denied April 12, 1916.)
    Cbiminal Law (&wkey;>595(4) — Continuance—I-h-matebial Testimony.
    Continuance is properly refused for absence of a witness whose testimony would be altogether immaterial and not applicable to the case.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323; Dee. Dig. &wkey; 595(4).]
    Appeal from Young County Court; W. P. Stinson, Judge.
    Cleve Barnes was convicted of making a sale of whisky in a prohibition county, and he appeals.
    Judgment affirmed.
    Brooks & Worsham, of Dallas, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a misdemeanor conviction in the county court for making a single sale of whisky in prohibition county. The complaint and information both allege that in June, 1902, an election was held in Young county, and the law prohibiting the sale of intoxicating liquors therein then duly put in force, and that on or about October 1, 1914, while said law was in force, appellant unlawfully made a sale of such liquor to Harvey Taylor. These pleadings were filed in the county court May 20, 1915. The case was tried July 13, 1915, and the state proved, without any contradiction, that said law was in force, and the one sale made, as alleged. Appellant moved for a continuance on account of the absence of his wife, but his bill as qualified by the court clearly shows that her claimed testimony would have been altogether immaterial, and not applicable in the case.

He has another bill to the court’s overruling his other motion to continue, because of the pending indictment against him in No. 3997, 185 S. W. 2, this day affirmed by us, claiming that indictment was a carving, and. placed him in jeopardy, and that he was entitled to a continuance to await trial on said felony charge. The trial in said felony charge, and his conviction therein, occurred after his trial and conviction herein. There was no merit in this motion, and the court correctly overruled it. The question is discussed and correctly decided by us in said cause No. 3997, this day decided.

The judgment is affirmed.

DAVIDSON, J., absent. 
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     