Appellant was convicted in the district court of Randall county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
Appellant lived in Randall county, and the principal state witness seems to have been his hired man. The testimony need not be set out at length, but was ample to support the judgment of conviction.
We have examined each bill of exceptions, but wUl discuss only those that are briefed, as we deem nothing of importance to be presented in the others. 1
Complaint is first made of the refusal of a continuance. Appellant was arrested on March 1st and tried on March 6th. No process was asked for or issued till March 5th. This was not diligence. The motion for new trial, based in part on the refusal of the continuance, was not accompanied by any affidavit of the absent witness, though he lived in the county, showing that he would have given the expected testimony. The motion for new trial was not overruled until a sufficient length of time apparently to have enabled the accused to obtain such affidavit. The trial court was justified in concluding that the absent witness would not have given the testimony stated, if present. In addition to this proposition, a number of witnesses swore to facts strongly showing guilt, and the testimony of the absent witness apparently went only to contradict .one of the witnesses to such facts. Without the testimony of this state witness, whose statements might appear contrary to those of the absent witness, the case made by the state sufficiently showed guilt. In our view the error, if any, of the refusal of the continuance would have been immaterial.
Henry Stem was allowed over objection to testify that he had seen whisky *1032at appellant’s place, and also that the accused made alcohol there. The objection was based on the proposition that the witness was not an expert, and that it was not shown that he knew what whisky was. The complaint is not borne out by any facts stated in the bill of exceptions. Bill No. 9 relating to this objection is in question and answer form and cannot be considered, and bills Nos. 1 and 2, also on the same point, contain no such allegation of fact as informed the trial court or this one that such objections were true and in accord with the facts. The witness disclosed a familiarity with whisky and testified that appellant told him that some of the liquor he was making was alcohol.
Testimony that the appellant, charged with manufacturing liquor, also sold some of it for beverage purposes at or about the time of the making, would be admissible and have more or less weight as showing the unlawful purpose of such manufacture. The sale of quantities of liquor by a person accused of manufacturing same might have probative force as tending to show its manufacture.
No duty rests upon a trial judge to submit an issue unless there be some. substantial testimony upon which same might be founded. Appellant did not take the stand and testify. It is in testimony that at one run he filled four jugs with whisky, one containing seven gallons and another five. He also made other runs, and is shown to have sold liquor to a number of persons. A defense witness, who said he was at appellant’s place in August and drank whisky with appellant out of a bottle, gave testimony to the effect that appellant told him that a doctor up north said he was supposed to need a certain amoufit of “toxicating” for internal use; also, this witness said appellant told him his father had sent him some herbs and that he had to have some whisky to put these herbs in to make bitters for his stomach.. This witness also swore that appellant told him ■ he did not have any whisky then, but was going to make some to be used in connection with these herbs to make bitters. This was the same witness who testified that he drank whisky with appellant at the time of his visit. A number of other witnesses testified relative to the appellant’s manufacture of liquor and to conversations had with him, and none of them suggest that appellant was making whisky for medicinal purposes. The sheriff of the county ’found at appellant’s home a still and a number of containers, many of which had small quantities of whisky in them and others smelled of whisky. Paul Lawson testified that he saw a barrel of mash at appellant’s house, and that the latter wanted to sell him whisky at $15 per gallon. The witness Mcllroy was at appellant’s house in September when appellant drew some liquor from a barrel and gave it to witness, who drank it and said it was whisky. This witness swore that appellant drew from a barrel about a half gallon of whisky at the time. In this condition of the record we do not think it erroneous for the court to refuse to submit a special charge instructing an acquittal if the whisky was made for medicinal purposes. As indicated, the only thing in the record remotely suggesting said purpose was the nebulous statement made by a defense witness that some months prior to the making of the large quantity of liquor testified to by the state witnesses, appellant had had the conversation above detailed with reference to making some liquor to put herbs in to make bitters. There is not a word of testimony in the record that the liquor made by1 appellant, or that sold by him, or that given by him to other parties, was made for medicinal purposes.
Bill of exceptions No. 10 is in question and answer form and cannot be considered by us. Nor do we think it error for the court to decline to submit to the jury the proposition that the witness Mcllroy was an accomplice. We fail to find any facts in testimony which would indicate that such was the case.
We have examined the argument of the district attorney complained of, but do not think it inflammatory or abusive. Nor are we able to agree that the supplemental charge given by the court in response to a request by the jury in writing was erroneous.
Finding no error in the record, the judgment will be affirmed.