It is earnestly insisted in the motion for rehearing that error appears in the refusal of a continuance. The continuance was for appellant's wife. It is stated in the application that she would testify that he was with her on the 9th of November, 1922 and each day for six days prior thereto and all the time of each day. This would include the 4th of November which was the day shown by the State witnesses as that on which the alleged sale of liquor was made and to which day the charge of the trial court restricted the jury in considering appellant's guilt. Reference is made in the opinion to the fact that the motion for new trial, based in part on the overruling of the application for continuance, was not supported by the affidavit of the wife. Examining anew the statement of facts it appears that the city marshal of the town of Rule testified that he saw appellant in town on November 4th. The witness upon whom reliance was made to show the sale of liquor, testified that he bought it from appellant on the 4th. Witness Lankford testified that he went with witness Goben and was present when the latter bought the liquor in question. Appellant's witness Barton testified that on the 4th he saw appellant in the town of Rule and at Jim Townes' blacksmith shop, that being the place where the State claimed the sale of liquor was made. We observe in view of this testimony that the learned trial judge would have been justified in his conclusion that it was not error to refuse to grant the continuance, upon the further reasoning that had the wife of appellant been present and testified that her husband was not in Rule on the day of the alleged sale but was with her somewhere else, it would not be at all likely to have influenced the jury to return a different verdict. We discussed at some length in the case of Grayson v. State, 91 Tex.Crim. Rep., 236 S.W. Rep., 1110, rules applicable to the refusal of a first continuance and held therein that no *Page 538 abuse of discretion of the trial court was shown. We think that discussion applicable to the instant case.
It is also insisted that we erred in upholding the action of the trial court in rejecting certain testimony to the effect that the prosecuting witness Goben was drunk on the night preceding the day of the alleged sale. In a case such as the one before us the effect of such proof could only have been as touching the credibility of the witness Goben in his narration of the facts transpiring in connection with the alleged sale. In his insistence upon this point appellant may have been misled by an inadvertent phrase in the original opinion, wherein we said that "His condition at and before that time was properly made an issue." Manifestly the fact that one was drunk two days or quite a length of time before an occurrence which he attempts to detail, could not have the accuracy of his relation of the events assailed or his credibility attacked by proof of the fact that he had been drunk at some time sufficiently long before that to enable him to have overcome the effects of such drunkenness. An examination of the record in this case discloses that the alleged sale was on the afternoon of November 4th, and we are unable to see the importance or weight to be attached to testimony of the fact that said witness was drunk about 9 o'clock the night before. The learned trial judge permitted the appellant to introduce all proof available upon the proposition that said witness was drunk on the day of the 4th, either at the time of or before the alleged sale, and we observe that witnesses by whom appellant sought to prove that the witness was drunk the night before also testified to the fact that he was drunk on the day of the alleged sale. We do not think the evidence as to drunkenness the night before which was rejected, of such materiality as to call for a reversal of the case. We have examined each of the authorities cited by appellant and conclude those relative to this question only to hold that evidence of drunkenness becomes material as affecting the reliability and credit to be given the testimony of the witness claimed to have been drunk, when the drunkenness stands in such proximity to the occurrence about which the witness attempts to testify as to make it reasonably probable that his memory or knowledge of such occurrence could have been affected by such drunkenness.
Finding no error in the former opinion, the motion for rehearing will be overruled.
Overruled. *Page 539