
    VISER v. STATE.
    (No. 8293.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied Oct. 29, 1924.)
    1. Criminal law <&wkey;603(2) — 'Verbal application for continuance held not compliance with statute.
    Verbal application for continuance on ground accused’s witnesses had not been summoned and that no subpoenas had been returned was obviously not in compliance with statute.
    2. Criminal law <&wkey;9l7(l), 938(1) — Refusing new trial for newly discovered evidence and for failure to grant continuance held proper.
    Trial court held, not to have abused his discretion in overruling motion for new trial on ground of newly discovered evidence and of failure to continue cause on account of witnesses not being summoned.
    Appeal from District Court, Titus County; R. ,T. Wilkinson, Judge.
    Richard Viser was convicted of an unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    J. P. Wilkinson, of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The state’s witness Elliott testified that he bought a bottle of whisky from the appellant and paid him therefor. The witness was a pardoned convict. Appellant testified and denied making the whisky. He also claimed that he bought whisky from the state’s witness.

The indictment against the appellant was returned on June 6, 1923. He was arrested upon the same day. On June 9th he applied for a subpoena for several witnesses; and upon the calling of his case on the 15th day of June he advised the court that his witnesses had not been summoned and that no subpoenas had been returned. He had been confined in jail since his arrest, and had been unable to employ an attorney. There was no written application for a continuance, and the verbal application was obviously not in compliance with the statute.

In his motion for new trial the failure to continue is complained of, and it is asserted that two witnesses, namely, Wilbanks and Renfroe, if present, would have testified that on the 15th day of May they saw the appellant and E. A. Tigert purchase some whis-ky from the state’s witness Elliott; that this information came to the appellant subsequent to the trial, and was not previously known; that the witnesses were temporarily out of the county and their whereabouts unknown. In overruling the motion for new trial the learned trial .court, in our judgment, did not abuse his discretion.

The judgment is affirmed. 
      <&wkey;>For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     