Appellant was convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year confinement in the State penitentiary.
Will Tolbert testified he purchased a bottle of whisky from appellant and paid him a dollar for it, therefore this would authorize the conviction of appellant.
He first complains of the action of the court in overruling his application for a postponement of the case on account of the absence of four witnesses. By the qualification of the court to the bill it is shown that all the witnesses named in the application attended court except one — appellant's daughter; she lived in Oklahoma, consequently the issuance of a subpoena would not be diligence. No effort was made to take her depositions, and under such circumstances the court did not err in overruling the application.
The foreman of the grand jury signed the indictment but his name was not indorsed or signed on the back thereof below the words "a true bill." This did not vitiate the indictment, and the court did not err in so holding.
Appellant requested the court to instruct the jury that the "defendant in a criminal case is presumed to be innocent until his guilt is established *Page 317 by legal and competent evidence beyond a reasonable doubt, is not a mere fiction of the law, but is a substantial right of the defendant equal to a witness in his behalf." This is not the law, and the court did not err in refusing the requested instructions. He gave the usual and customary instruction as to presumption of innocence and reasonable doubt, and this was all that was necessary.
The judgment is affirmed.
Affirmed.
[Rehearing denied November 18, 1914. — Reporter.]