Unlawfully transporting intoxicating liquor is the offense, punishment fixed at confinement in the penitentiary for a period of one year.
By circumstances and by direct testimony it was shown by three state's witnesses that the appellant and one Allison committed the offense charged. Appellant introduced no testimony save that tending to show his good reputation.
There are two bills of exceptions. In bill No. 1 complaint is made of the refusal of the court to grant the appellant's application for a continuance which was based upon the absence of the witnesses Albert Wilson and Bob Couch. It is the theory of the state that while traveling from his home in the direction of a place called St. Mark's Chapel, a container of whiskey was placed in the automobile of the appellant and transported therein. According to the motion, Bob Couch, if present, would have given testimony to the effect that he was with the appellant upon the occasion mentioned and that the appellant had *Page 30 no whiskey. One of the state's witnesses testified to circumstances showing that the appellant sold some whiskey while upon the journey mentioned above, and, according to the motion, Couch would have controverted that testimony. The motion does not disclose what testimony was expected from the witness Wilson. In qualifying the bill the court states that both of the witnesses named appeared during the trial and were tendered to the appellant. In view of the qualification the bill shows no error.
It is shown by bill of exceptions No. 2 that the appellant filed what is denominated a "supplemental application for a continuance." Such an application is regarded as a subsequent application and its elements are determined by Art. 544, C. C. P., which states the requisites of such an application. See Ferguson v. State, 101 Tex.Crim. Rep.; Jeffers v. State, 104 Tex.Crim. Rep.; Beckwith v. State, 104 Tex. Crim. 467. In this subsequent application for a continuance, appellant states that he desired to correct his first application in the particular that Bob Couch was not the person who made the trip to St. Mark's Chapel and gave the testimony set out in the original application, but that it was Homer Couch who would give such testimony. He adds that Dreeben Crosby would also give like testimony. Subpoena for the witnesses Homer Couch and Dreeben Crosby was issued on the 29th day of January, 1927, and in the same subpoena were the names of other witnesses. The return on the subpoena reads as follows:
"Came to hand on the 27th day of Jan. A.D., 1927, at 9 o'clock a. m., and executed by reading the within subpoena in the presence and hearing of the following within named witnesses, all of whom were summoned in Harrison County, on the dates and at the places hereinafter set forth, as follows:
(Course (Name) __________ (Date) __________ (Where) __________ miles) __________ from __________ miles."
On its face the return fails to show service upon the witnesses named in the supplemental application. It is stated in the bill, however, that the names of Dreeben Crosby and Homer Couch were checked with a pencil mark, but that the other witnesses were not. In qualifying the bill the court said that he called the sheriff, who testified that the witnesses Homer Couch and Dreeben Crosby were not subpoenaed. The indictment was returned on September 11, 1926. The trial took place on February 2, 1927. The subpoena relied upon was not issued until January 29, 1927. However, in his supplemental motion appellant *Page 31 states that the subpoena for the witnesses named was issued on the 17th of September, 1926, and another was issued on September 20, 1926; that one was sent to Harrison County and the other to Dallas County; and that the witnesses were reported not found on each of them. In the supplemental motion the appellant is not able to say whether the witnesses named are to be found in Harrison County. We are therefore constrained to conclude that the diligence to secure the witnesses does not fill the measure of the law; nor does the probability of securing the attendance of the witnesses by postponement or continuance appear. Neither does the probable truth of the alleged testimony of the absent witness so appear as to warrant this court in concluding that in overruling the application the learned trial judge abused the discretion which was vested in him by law.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.