
    McKNIGHT v. STATE.
    
      (No. 7463.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.)
    1. Criminal law <@=>614(1) — Denial of second continuance for absent witnesses held not error.
    Denial of a second application for a continuance on account of tlie absence of three witnesses, which contained no averment that the absent testimony was not cumulative and did not show any effort made to secure the attendance of the witnesses, held not error.
    2. Criminal law <9=31112— Bill prepared by court can be controverted only by bystanders’ bill.
    Where a bill has been filed by the court in lieu of one prepared by appellant, it can be controverted only by a bill prepared under the statute permitting a bystanders’ bill and not by an exception thereto.
    3. Criminal Jaw <9=5406(5) — jAdmission of testimony of conversation between accused and another concerning still held not error.
    The admission of testimony that a witness overheard appellant and another talking about a still, which did not specify the particular still, but indicated that pursuant to the information received appellant and the other were found operating the still in question, held not error.
    4. Intoxicating liquors <@=>233(2) — Evidence accused purchased lumber similar to some found at still held admissible.
    In a prosecution for the unlawful manufacture of intoxicating liquor, evidence that accused bought lumber similar in character, quantity, and dimensions to lumber found at a still, held admissible.
    5. Criminal law <@=>I 159(5) — 'Verdict on question of identity binding on appellate court.
    In a prosecution for manufacturing intoxicating liquor, where the only issue on appeal was that of identity, and the state’s testimony, if believed, was sufficient, a verdict reflecting the jury’s beliefs in such evidence is binding on the Court of Criminal Appeals.
    Appeal from District’ Court, Titus County; R. T. Wilkinson, Judge.
    Charley McKnight was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Cook, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORBOW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The only question presented is the identity of the appellant as the offender. According . to the state’s evidence, the appellant’ and one Tew were heard talking about going and getting a still. Acting upon this information, officers went' to a certain place, where they found a still in operation and saw the appellant and Tew present and taking part in its operation. They had a companion who was not recognized. Observing the officers, the parties at' the still fled. Shots were fired during their flight. Appellant was arrested some days afterwards. One of the arresting parties was definite in his recognition of the appellant, and another also testified to his identity, though he admitted on cross-examination that there was some uncertainty. A hat was found at' the still which was identified by the state’s witnesses as having been worn by the appellant.

Appellant denied having any connection with the offense and presented the theory of alibi. He claimed that he was at a lake some distance from the place of arrest, that Tew was with him, and that other parties were near by. <

A motion to continue was made on account' of the absence of three witnesses. One of them, according to the recollection of the judge, appeared but was not called as a witness. It was the second application, as we understand the record, because of the same witnesses. It contained no averment to the effect that the absent testimony was not cumulative. If we properly understand its averment, it does not show that any effort' was made to secure the attendance of the witnesses after the former application for a continuance was granted.

One of the jurors stated on his voir dire that he would regard the indictment as a circumstance against the appellant. The court admonished him that the indictment could not be so considered, and after receiving this information, he testified that he would base his verdict solely upon the testimony and would wholly ignore the indictment as an item of evidence. This bill was prepared by ihe court. It was challenged by an exception, but not by a bystanders’ bill. The court having filed the bill in lieu of that prepared by'the appellant^ it could be controverted alone by a bill prepared under the statute permitting a bystanders’ bill. See Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999.

There was no error, we think, in receiving the testimony of the witness Horton that he heard the appellant and Tew talking about getting a still. His testimony does not specify any particular still, but it appears that he acted upon the information received, and that appellant and Tew were found operating the still in question.

A part of the still, which was called the “flake stand,” was built of some new lumber of certain dimensions. The court did not err in receiving the testimony that the appellant had recently bought lumber of that character, quantity, and dimensions. It was a relevant circumstance, though it may have been of little weight.

As stated above, the only issue presented for review is that of identity. Upon this the state’s testimony, if believed, was sufficient. The jury’s verdict' reflects their belief in its truth. They have settled the controversy in a manner that is binding upon this court.

The judgment' is affirmed. 
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