
    HAYS v. STATE.
    (No. 10238.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.)
    1. Criminal law <&wkey;>594(3) — Court is not called on to continue case, where witness, on account of whose absence continuance is sought, is fugitive from justice.
    Court is not called on to continue case, where 'witness, on account of whose absence continuance is sought, is fugitive from justice.
    2. Criminal law <&wkey;>622(2) — Severance held properly denied, when eodefendant, whose evidence was objeot of severance, was fugitive from justice.
    Severance held properly denied, when eode-fendant, whose evidence was object of severance, was fugitive from justice, since Ms case could not be first tried with reasonable dispatch.
    3. Criminal law <&wkey;829(l).
    Refusal of requested special charges on issues correctly submitted in main charge held not error.
    Commissioners’ Decision.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Jake Hays was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    B. P. Miller, of Athens, and West & Stanford,, of Canton, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

Tile offense is unlawful transportation of intoxicating liquor, and the punishment is 2 years in the penitentiary.

The state’s testimony is sufficient to show that the appellant transported liquor in Yan Zandt county at the time charged in the- indictment. It was appellant’s theory, supported by his evidence, that while he drove the car in which the liquor .was transported he did not know that same contained liquor while he was driving it.

The appellant’s first complaint is at the court’s action in overruling his application for a continuance. This application was based on the absence of the witness Jinks Cole. The record discloses that Cole was the party in the car with the appellant and the party who sold to the prosecuting witness some of the liquor that was being transported. The bill of exceptions and the testimony heard in connection therewith shows that Cole, at the time the application for a continuance was filed, was under indictment in the same court in which appellant was tried, and that he was a fugitive from justice. The court is not called on to continue a case where the witness, on account of whose absence a continuance is sought, is a fugitive from justice. Harris v. State, 8 Tex. App. 90; Maloney v. State (Tex. Cr. App.) 43 S. W. 980; Stevens v. State (Tex. Cr. App.) 49 S. W. 105; Godwin v. State, 44 Tex. Cr. R. 600, 73 S. W. 804; Vann v. State, 48 Tex. Cr. R. 14, 85 S. W. 1064; Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Deckard v. State, 58 Tex. Cr. R. 38, 124 S. W. 673.

By his second bill of exceptions appellant complains at the court’s action in refusing to grant-his motion to require the state to try Jinks Cole first. The motion shows that there was an indictment against the said Cole for selling whisky to Fred Clark, and that said sale grew out of and was a part of the same transaction for which appellant was under indictment. The motion further shows that the parties were separately indicted. Upon bearing same, the court refused to grant the motion, and his qualification to the bill' shows that Cole was a fugitive from justice at this time. The court’s ruling in this respect was correct. A severance is properly denied when the codefendant, whose evidence is the object of the severance, is not under arrest or in such situation that his case can be first tried with reasonable dispatch. Anderson v. State, 8 Tex. App. 542.

The other bills of exceptions preserve complaints at the court’s action in refusing certain special charges offered by the appellant. One- group of these charges sought to have the jury instructed with reference to the voluntary nature of the confession of j appellant which was offered in evidence. The 1 other .group of charges sought to have the issue submitted that, if the offense did not take place in Van Zandt county or within 400 yards from the county line, -the appellant should then be acquitted. Each of these issues were correctly submitted by the court in his main charge to the jury. In fact almost the identical language contained in the special charges was given in the main charge on both of these issues.

Believing that the facts are-entirely sufficient to support the verdict, and finding no error of procedure in the record, the judgment is in all things affirmed.

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