This case, like that of Rice v. State, No. 21,466, this day decided, is presented to us in piecemeal without any apparent excuse therefor. This case was originally disposed of in the same manner and upon the same grounds as the Rice case. Since then, a sufficient showing has been made to authorize us to consider the statement of facts and bills of exception.
The statement of facts discloses that Upshur County is a dry area; that on or about the 21st day of July, 1940, appellant, in said county, sold to one G. H. Keelan, an agent of the Texas Liquor Control Board, a half gallon of whisky. Appellant waived a trial by a jury and entered a plea of guilty. Consequently the conviction is fully justified.
By Bill of Exception No. 1 appellant complains of the court's action in overruling his motion for a continuance based on the ground that the jury panel from which he would be required to select a jury had heard the testimony of the State's witness, Keelan, in the case of Rice v. State, convicted the accused; that this defendant is charged with a similar offense; that Keelan is also the State's principal witness in this case and the jury would be prone to accept his testimony as true. *Page 602 This contention is without merit inasmuch as appellant waived a jury and entered a plea of guilty to the court.
His second contention is based on the absence of a witness for whom he had not had any process issued; hence he failed to exercise proper diligence to secure the attendance of said witness.
Bills of Exception Nos. 2, 3 and 4 have been examined by us and, in our opinion, fail to reflect any reversible error.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.