Conviction is for the sale of intoxicating liquor with punishment assessed at confinement in the penitentiary for one year.
We see no necessity for setting out the evidence. It is amply sufficient to support the verdict. It is apparent to us, and must have been to the jury, that the prosecuting witness was testifying reluctantly and trying in every way possible to shield appellant, but notwithstanding this his evidence makes out a complete case. *Page 56
No error was committed in overruling appellant's application for continuance. It fails to show the slightest diligence.
Leo Burton was with prosecuting witness Stewart at the time he went to the home of appellant, made inquiry for and obtained the whisky. After using the witness Stewart the state rested its case, having omitted to prove venue. Appellant also rested. The State then called the witness Burton whereupon the court announced that his evidence would be confined to proving venue. The district attorney asked the witness in what county it was that he and Stewart got the whisky, to which Burton replied that it was in Lamar County, Texas. Appellant interposed objection because both the state and appellant had rested their case. It is within the sound discretion of the court under Article 718 C.C.P. to permit evidence at any time before argument is concluded where the ends of justice demand it. We observe no abuse of such discretion in the present instance.
Appellant requested the court to instruct the jury to return a verdict of not guilty. The bill bringing this matter forward for review might be dismissed with the statement that it fails to show that the charge was presented to the court before the main charge was read to the jury, or to show that appellant reserved exception to the refusal of the charge; (Linder v. State,94 Tex. Crim. 316, 250 S.W. Rep., 703; Crane v. State,91 Tex. Crim. 304, 240 S.W. Rep., 920; Cecil v. State,92 Tex. Crim. 359, 243 S.W. Rep., 988) but if it was in fact presented in a timely manner the court properly refused it.
No errors appearing in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. May 7, 1924.