Appellant was convicted in the District Court of Jones County of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.
There are two bills of exception in the record, one complaining of the overruling of appellant's motion to quash the indictment, and the other presenting his objection to the court's refusal of a continuance.
The continuance was sought for the absence of John Miller who was alleged to have gone out of the State since he was served with a subpoena. In regard to this it appears from the testimony of Miller's father, who was introduced as a witness in behalf of appellant, that John Miller had gone to the State of California and is now residing there. No effort is reflected by the record to obtain his deposition. It is made to appear that appellant learned that Miller had gone from Texas some time before the trial. Our law provides a way in which the testimony of one who is permanently out of the State may be secured on behalf of one accused of crime, but he is not absolved from the use of due diligence in getting same. The motion to quash the indictment seems to present no new matter. It presents the question that the amendment to Sec. 31, Chapter 78 of the Second Called Session of the Thirty-seventh Legislature is null and void because of the alleged fact that the bill undertakes not only to amend said chapter but also undertakes to amend Art. 865-b of the Acts of 1913. We are cited to no authorities holding in accord with the contention made by appellant and none are known to us. We would not think a bill whose entire subject matter related to amending the law relative *Page 422 to intoxicating liquors would be open to the objection made to this amendment, to-wit: that it related to more than one subject. The other questions raised by appellant in his motion to quash have all been settled against him by decisions of this court.
Finding no error in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING. May 7, 1924.