Appellant was tried and convicted in the circuit court of Monroe County for selling whisky without license, and appeals to this court. He was convicted on the testimony pf one Smith, who testified that he purchased the whisky from appellant. The only assignment of error insisted on here is as to the refusal of the trial court to grant a continuance on account of the absence of a witness.
Appellant alleged in his motion for continuance that he could prove by the absent witness, Flemons, that Smith had stated to him, Flemons, that he had never purchased any whisky from appellant, and did not know of appellant ever having sold whisky. It is also alleged in the motion that the witness Flemons lived in Clarendon, and that a subpoena had been issued and served on him requiring his attendance at that term of court.
Before a party can complain of the ruling of" a court in refusing to postpone a trial, he must affirmatively ■ set forth facts in his motion which show that he is entitled to the postponement. He must show that he has exercised proper diligence to procure the attendance of t’he witness at that time, and that his efforts in that direction have failed. Now, the motion for continuance in the present case affirmatively shows that the witness resides in Clarendon, where the court was held,' but it does not otherwise account for his whereabouts. Eor aught that appears to the contrary, the witness may then have been in the town or county, and his attendance could have been secured at that time by the .compulsory process of the court, if that had been sought, without postponing the trial to a distant date. Appellant contented himself with having a subpoena issued and served, without seeking any other process of the court, and without showing that the witness was then beyond reach by the process of the court. We are unable, therefore, to discover in the ruling of the court any abuse of discretion. The appellant had a fair trial, and the evidence was sufficient to sustain the judgment.
Affirmed.