At a former day of this term we dismissed this case on account of the record failing to show the sentence of the defendant. The record has been corrected and is now before us on its merits.
Appellant complains of the action of the court in refusing to grant him a continuance for the want of the testimony of Monk Henderson. The application shows that process issued on the 15th day of June, 1924, to Freestone County, to summon "Bunk Hudson." The sheriff's return thereon was made, "Bunk Hudson cannot be found in Freestone county." This process was returnable on the 19th day of June, 1924. It appears that the defendant was tried on the 26th day of September, 1924. There is no showing in said application for continuance that there was ever any process issued upon request of appellant for the witness "Monk Henderson," but the record shows that there was process as above stated issued for "Bunk Hudson." There is nothing in the record to show that Monk Henderson and Bunk Hudson are one and the same person. The application shows on its face to be the second application for continuance and that the court refused to grant same because of *Page 545 a lack of diligence. As the record is presented there is no diligence shown for Monk Henderson, and if the record should disclose that Monk Henderson and Bunk Hudson were the same person, then we are unable to say the diligence was sufficient to require the trial court to grant the application in this instance. The application stated that the purpose of this testimony was to show that the appellant was at another and a different place at the time of the alleged offense, without stating the facts supporting said allegation. We find the record discloses from the evidence of the appellant's wife that Monk Henderson on the night of the alleged offense stayed all night at the appellant's house and slept in a different room from that of her and the appellant. The evidence of the State discloses that at about 1:30 a. m. that the state's witness Broyles was found on the road by the deputy sheriff sitting in an automobile that was shown to be under the control of appellant prior and up to a late hour on the evening of the night of the offense, with about 15 gallons of whiskey, a few miles out from the town of Mexia, the home of appellant; and that said officer took said Broyles and said whiskey back to town and left said car there, and after while returned and the car was gone. The said Broyles on the stand testified that the appellant had purchased the whiskey and was transporting it, and that he was riding with the appellant, and that the gasoline had given out, and appellant had gone to get some gasoline when the officer arrested him. The state's witness Hughes testified that the appellant came to his house about that time of night, asking for gasoline, and stated that he had run out of gasoline. There is no evidence in the record showing where appellant was from bed time of the night in question, except his own, up to the time the officer arrested the witness Broyles with the car in question. Under this state of facts as shown by the record, we do not feel warranted in holding that the court committed error in overruling this second application for continuance.
Appellant's bills of exceptions 2 and 3 complain of the action of the court in failing to charge the jury on the law of accomplice testimony, and that they could not convict the appellant unless there was other evidence tending to connect him with the offense, other than that of the said witness Broyles. As presented we presume that the contention of the appellant in this instance is that the testimony showing said Broyles was in possession of the whiskey at the time he was arrested, and according to his own testimony was riding in the automobile *Page 546 while appellant was transporting same, made him an accomplice in this case. Art. 670 P. C. 1925, states:
"The purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial."
In construing this statute in an elaborate opinion of this court by Judge Hawkins it was held that this special statute took precedence over the general law relative to principals and accomplice witnesses, in the case of Bailey v. State,100 Tex. Crim. 100.
The record discloses that the appellant was charged and convicted of unlawfully transporting intoxicating liquor, his punishment assessed at one year in the penitentiary, and the judgment thereon entered accordingly. The court, in passing sentence in this case, sentenced the appellant "to confinement in the penitentiary for a term not less than _____ nor more than two years." This the record shows to be an error of the court in passing sentence, and said sentence is so reformed as to read in lieu thereof, that the appellant is to be confined in the penitentiary for a term of one year.
Finding no error in the record, the judgment of the trial court as reformed is now affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.