We are not impressed with the contention made by appellant that an affidavit made by one who has three able counsel present at his trial, which states that said defendant "earnestly desires the active participation in the trial" of another of his attorneys who is away in attendance upon the legislature, — is equivalent to and should be held by this court to be the same thing in law as the language which appears in Chap. 7, Acts Regular Session of the 41st Legislature, whereby one is required to make an affidavit, in a proper case, that the presence of an attorney absent and in the legislature "Is necessary to a fair and proper trial of the cause." The continuance of a criminal case to whose trial many witnesses may have come at much expense from a long distance, as well as veniremen and others, is no small matter, and is not to be granted at the desire, or even the earnest desire of the accused, except upon a legal showing. Ordinarily an affidavit to be used in the course of a legal trial should be in such form as that if falsely made same can be made the predicate for prosecution for perjury. It is evident at a glance that no perjury prosecution could be predicated upon an affidavit in form such as that made by appellant in the instant case, whereas an affidavit stating that the presence of a particular attorney is necessary to a fair trial of a cause, raises an issue upon which evidence pro and con might be introduced, and, in a proper case, if the falsity of such statement be made to appear, punishment therefor could be meted out. We are not able to agree with appellant's contention that he sufficiently followed the statute. *Page 466
Appellant and another were in a Ford car which had no top. The cushion was off the back seat. Two kegs of whiskey, one a ten gallon and the other a fifteen gallon keg, were in the car. The corn cob stopper of one of the kegs had not been sufficient to keep the whisky from sloshing out, and the testimony showed that the odor of whiskey pervaded the air when the car was stopped. Appellant lived in Montague county, an adjoining county to the county of the forum. A communication from Montague county to the sheriff of Wise county led to the stoppage of said car. At once when the car was stopped appellant sprang from same and started to run rapidly away. The other occupant of the car immediately and in the hearing of appellant affirmed that the latter was guilty. Appellant was stopped. These facts were deemed by the jury sufficient to show him guilty as a participant in the unlawful transportation of intoxicating liquor. We are not able to say that the jury were not justified in their conclusion.
The motion for rehearing will be overruled.
Overruled.