Appellant was convicted in the District Court of Palo Pinto County of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.
Appellant complains of the refusal of a continuance. The attendance of the wife of appellant was desired as a witness for the defense. The diligence shown is doubtful. The indictment was returned April 13, 1922. A subpoena was issued for said witness April 20, 1922. It had not been returned when the application for continuance was made. It is stated that upon reliable information appellant alleges service of said subpoena April 24, 1922, but owing to same not having been returned, the subpoena is not attached to the application. It is averred that the witness is ill and unable to attend court, and a certificate of a physician is attached the substance of which is that the physician made a professional call on Mrs. Dan Nanec on April 24th and that she was suffering from a hemorrhage which would render it unsafe for her to take the trip to Palo Pinto town. This certificate does not state sufficient facts to enable the trial judge to appraise the soundness of the statement. There may be hemorrhages from the nose or from any injury which causes a flow of blood.
In passing on the motion for new trial, based in part on the refusal of the continuance, the question of the materiality of the testimony of the absent witness and the likelihood of the lack of such *Page 285 testimony affecting the verdict of the jury, would arise. It is stated in the application for continuance that appellant expected to prove by his wife that for two weeks next preceding the date of the commission of the alleged offense the appellant was not away from his home; also that upon the date alleged in the indictment, or the day before, the wife requested appellant to procure some whisky for her and he left home at her request with the intention of procuring the whisky. The indictment charges the manufacture of intoxicating liquor on December 30, 1921. The State's theory as made by its evidence is that on the 29th of December appellant and one Sumerall went to a point in Palo Pinto County where a still was located, for the purpose of manufacturing whisky, and that he was engaged in such manufacture on the 30th of December at a time when certain officers made a raid upon said still and found him apparently engaged in such manufacture. The State witness Sumerall testified that on December 29th appellant came by where he was and engaged him to go and make whisky, and that the two of them went together to a certain place in a canyon or hollow and there found a still apparently ready for operation, that is, there was mash there and the apparatus necessary for the conversion of same into liquor. Said witness swore that he and appellant built a fire under the boiler and put part of said mash in the boiler, and that they then made a run of liquor which he called singlings. He testified that singlings was intoxicating liquor, but that they intended to double it back and run it a second time in order to make it better. Two officers testified that on December 30th they raided the still in Soda Springs Hollow, and there found intoxicating liquor in process of manufacture, and that appellant was tasting the contents dripping from the worm of the still, at the time said officers made their appearance. They said there were no other persons around said still except appellant and Sumerall.
As far as we can understand this record the testimony stated to be that desired from appellant's wife, in no way contravenes or renders improbable the testimony of the witness Sumerall; nor does the testimony of the absent wife defeat the truth of the proposition that on December 30th appellant was engaged in the manufacture of intoxicating liquor.
That a man named Baker, for whom no subpoena had been issued but whose testimony was stated in the application as desired by appellant, may have also been present and concerned in the manufacture of the intoxicating liquor in question, would not so overcome the State's testimony as to make this conviction contrary to or unsupported by the evidence. That Baker may have been concerned in the manufacture of the liquor, and may have assembled the paraphernalia, or may have prepared the mash, or have done or been concerned in doing other things preparatory or incident to the manufacture of such liquor, would not overthrow the State's case, but the likelihood *Page 286 of obtaining the deposition of Baker, who is stated in the application to be in Florida, or that Baker would depose and swear that he and not appellant was engaged in the manufacture of liquor at said time and place, would appear to be of extreme improbability to us. We would not think the trial court to have abused his discretion in the matter of the refusal of the motion for new trial because of the rejection of the application for continuance, under the facts stated in this record.
Appellant was nearly fifty years of age, and this offense having occurred subsequent to the passage of the law depriving those more than twenty-five years of age of the benefit of suspended sentence when charged with a violation of the liquor law, it was not error for the trial court to refuse to submit to the jury the issue of suspended sentence. This has been decided adversely to appellant a number of times.
Appellant asked that the jury be told that they could not convict him of the charge laid in the instant case upon proof of his possession of equipment for the making of intoxicating liquor. A charge such as this, under the facts in the instant case, was not called for. The accomplice witness testified for the State that he and appellant manufactured singlings. Witnesses who tasted and examined the singlings testified that it was intoxicating. The State did not rely, therefore, upon the fact of appellant's possession of equipment for the manufacture of liquor, save in so far as it was circumstance corroborative of the testimony of the accomplice.
We think the indictment sufficiently charged a violation of the law. The offense was described therein as the unlawful manufacture of liquor capable of producing intoxication.
The trial court instructed the jury that the witness Sumerall was an accomplice and that a conviction could not be had upon his testimony unless corroborated by other evidence. In our opinion the testimony of other witnesses amply corroborated that of Mr. Sumerall.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. April 25, 1923.