Conviction for possession intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
The sheriff of Cottle county, Texas, observed appellant's actions about noon on June 7, 1928, saw him get into his car and start away. The officer followed him, stopped him, talked to him, arrested him, made complaint against him, took his bond, and then went with appellant to the sheriff's garage where a number of kegs of whisky were unloaded from appellant's car. The sheriff was corroborated in his testimony as to the removal of said kegs from appellant's car at said garage by Mr. Wood, a brother-in-law of the sheriff, who was present at the occurrence. Appellant denied having such kegs, or that the same were unloaded from his car, and by a number of people who knew him before he went to live in Wichita Falls some ten or twelve years ago, he proved that when they knew him he bore a good reputation. No witnesses from Wichita Falls testified as to appellant's reputation since he moved there.
Appellant sought a continuance based on the absence of his wife and one Shubert, by whom he expected to prove that when he left Childress, Texas, about 8 A. M. on the day he was arrested in Paducah, Cottle county, Texas, he had no whisky in his car; said application is also based on the absence of one Sayers by whom appellant expected to show that some fifteen minutes before his arrest said Sayers looked at his car inside and out with a view of buying same, and would testify that it then contained no whisky. Appellant was arrested on that same day, and the indictment was *Page 38 returned October 11, 1928, and subpoenas issued for Mrs. Beasley and Sayers on October 15th. The return on the process for Sayers stated that he was out of the county. No effort of any kind was made to show where he was, or that he would return, nor was any affidavit of said witness procured, though the court did not adjourn for several days after the motion for new trial was overruled. No showing is made as to whether Shubert was ever served with process, or what became of the process, if any, issued for him. A very vague and general affidavit of a doctor in Wichita Falls to the effect that appellant's wife was under his care and observation and would not be able to leave Wichita Falls for thirty days, was offered as explaining the absence of appellant's wife.
We think no abuse of the discretion of the trial court appears in the refusal of this continuance, or the subsequent overruling of the motion for new trial. Appellant was not charged with the transportation of whisky from Childress to Paducah, but with possession of whisky in Paducah. There was no proof by the State that he had any whisky in his possession at any other place save in Paducah. When found in possession of same he told the sheriff, according to the officer, that he was carrying it to Lubbock. We find in the record the testimony of Finley and Worley which seems effectually to show that appellant had no whisky in his car when he came to Paducah on the occasion in question. It is well settled in this State, — admitting that the testimony expected of the absent witnesses may be true, yet if same be not in conflict with the State's testimony going to establish the guilt of the accused, a motion for continuance will be properly overruled. Abrigo v. State, 29 Texas Crim. App. 146; Underwood v. State,38 Tex. Crim. 196; Turman v. State, 50 Tex.Crim. Rep.; Jaureque v. State, 55 Tex.Crim. Rep.; Bussey v. State,59 Tex. Crim. 260. Finley and Worley had occasion to see in appellant's car some miles before he got to Paducah and both swore that he had no whisky at that time. Neither this testimony nor that expected from Mrs. Beasley to the effect that he had no whisky in the car when he left Childress at 8 A. M. that day, is deemed at all in conflict with the testimony of Sheriff Payne that when he arrested appellant in Paducah the latter at first denied having any liquor in his car, and when the officer threatened to open the back of the car appellant said he did have a quantity of liquor there which he was going to take to Lubbock, and further that after he made bond five kegs of whisky were unloaded from appellant's car in the presence of Sheriff Payne and Mr. Wood. We *Page 39 deem the refusal of the continuance under these circumstances not erroneous.
The case is not on circumstantial evidence. The statements of appellant made to the sheriff were res gestae. He was then in possession of the whisky in his car and was committing a felony, and the fact that he was under arrest, actual or threatened, would not be reason for rejecting his res gestae statements. The kegs found in appellant's car contained whisky, a known intoxicant. We have examined each of the special charges, refusal of which is complained of, and think no error appears in such refusal.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING