This was a conviction for violating the local option law, the punishment assessed being a fine of $25 and twenty days imprisonment in the county jail.
Appellant presented application for continuance. The same is defective in that it does not show whether the witness had permanently left the State or not, and does not show to the court any probability that the witness will ever be back in Texas.
During the progress of the trial appellant made a motion to postpone same in order that he might procure the testimony of several witnesses by whom he could establish an alibi for defendant; that he had not been advised as to the time when the offense was alleged to have been committed. The date alleged in the information of the commission of the offense was April 1, 1907. The record does not show any steps to procure the testimony, and this is not a matter of surprise, as has been frequently held by this court. It follows that the court did not err in refusing the postponement.
The record contains a motion to quash the panel of the jury because appellant says they are made up of Prohibitionists, and that they had practically formed an opinion against defendant, for six of the jurors had heard the testimony in another case where the defendant said he did not sell whisky, and, though he testified to that, they convicted him, and thereby had practically prejudged this case. The sale alleged in this case was shown to have been made to one Humphrey, while the sale in the other case in which he had been tried was made to one Bowman, and in no sense companion cases. This shows that the facts were different, and different witnesses, and would not disqualify the jury. Article 694 of the Code of Criminal Procedure provides that "the defendant may challenge the array for the following causes only: That the officers summoning the jury had acted corruptly, and had wilfully *Page 277 summoned persons upon the jury known to be prejudiced against the defendant, with a view to cause him to be convicted." And article 662 says: "The preceding article does not apply when the jurors summoned are those who have been selected by jury commissioners. In such a case no challenge to the array is allowed." The bill of exceptions here fails to show whether the jury was selected by the jury commissioners or not, and in the absence of such statement in the record it will be presumed the jury was organized accordingly to law, and drawn by the jury commissioners, and the only question that can be presented here would be that the jury had formed an opinion in the case, and this can not be held so where it is a different offense, and where the State relies upon different witnesses.
The other questions have been passed upon by this court in various local option cases, and, finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. May 19, 1909.