ON MOTION FOR REHEARING.
MORROW, Presiding Judge.The conclusion has been reached that the bill of exception is sufficient to require a review of the action of the court in refusing to grant the appelant’s second application for a continuance, which embraced the names of several witnesses. As to none of them, however, save the appellant’s wife, was there an averment that the testimony desired could be obtained from no other source known to the appellant. In the particular mentioned, the application, so far as it depends upon witnesses, except the wife of the appellant, is defective. See subdivision 1, article 544, C. C. P., 1925; Tinker v. State, 269 S. W., 778.
The testimony expected from the absent witness was in substance that she was with the appellant when he acquired the whisky and that he did not possess it for sale but for medicinal purposes; that it was not transported or moved by him after he acquired it. The affidavit of the witness attached to the motion for new trial goes into detail attending the acquisition of the whisky b)r the appellant. It is in substance as follows: The witness and the appellant went to a place called Levelland and met two persons by the name of Abel, who informed the appellant that they desired some whisky. Appellant told them that whisky could be obtained from a man by the name of George. The appellant and the Abels went to George’s place to purchase whisky. The witness did not go with them. Appellant returned to Levelland and parked his car at the Chevrolet garage. The Abels were in their car nearby. Later George appeared and took from his car four gallons of whisky and placed them in the appellant’s car. Appellant placed half a gallon of it in a satchel and the • remainder was put in the back of his car. At the time the officers arrived the car had not been moved since the whisky was placed in it. *201The Abel brothers departed while the whisky was being transferred from George’s car to that of the appellant.
The officers testified that they had observed the car while it was parked at the garage and did not see George or any other persons put the package in the appellant’s car; that they observed closely the appellant’s movements and saw him take a satchel out of his car and approach a car that was nearby.
Appellant introduced, through the county attorney, his testimony given upon the examining trial, in substance to the effect that the witness was left by him at Levelland while he went into the country and bought a half-gallon of whisky and brought it from another county in his own car; that with the exception of the half-gallon mentioned, the other liquid in the car was colored water. The state’s testimony was positive to the effect that the four and one-half gallons of liquid found in the appellant’s car was whisky. The proffered testimony of the appellant’s wife would have been contradictory of his own testimony given upon the examining trial and introduced by him upon the present trial. It would have been in conflict with the averment in the application for a continuance that she was present when the whisky was purchased. The proffered testimony is that he did not transport the whisky, but that if he did so, it was transported for medicinal purposes. The trial judge manifestly concluded in overruling the new trial that the proffered testimony of the appellant’s wife was not such as would probably have brought about a different result. This court is not able to say that in reaching such a conclusion the trial judge abused the discretion which was vested in him by law.
As to testimony the witness would give relative to appellant’s stating to her two or three hours before he bought the whisky that he was ill and needed it for medicinal purposes, it is observed that the declaration would have been self-serving. Hence such declaration would have been inadmissible upon the trial of the case. See Woods v. State, 115 Texas Crim. Rep., 373; Hart v. State, 57 Texas Crim. Rep., 21, 121 S. W., 508; Hardeman v. State, 61 Texas Crim. Rep., 111, 133 S. W., 1056; Hardy v. State, 86 Texas Crim. Rep., 515, 217 S. W., 939; Watt v. State, 90 Texas Crim. Rep., 447, 235 S. W., 888. The declarations Were in no sense res gestae.
The motion for rehearing is overruled.
Overruled.