A reconsideration of the record convinces us that the recitals of Bill of Exception No. 1 are sufficient to show that the affidavits attached to the motion for a new trial constituted all the evidence heard pro and con with reference to the issue made regarding appellant's motion for continuance and the same will now be considered by us on its merits.
Appellant was indicted in two counts, the first charging the unlawful possession of mash for manufacturing intoxicating liquor and' the second charging the unlawful possession of a still for said purpose. The State abandoned the second count, the first only being submitted in the court's charge. The issue therefore before the jury was only whether or not appellant unlawfully possessed mash for the purpose aforesaid.
By the three witnesses named in appellant's application for continuance he proposed to prove in substance that they were out quail hunting and unexpectedly came upon a still operated by one John Sims and Charlie Hawkins, that appellant and his wife were present but doing nothing toward preparing to make whisky, and that Sims admitted that they were intending to make some whisky but stated that the still was full of holes and was in no condition to run whisky that day and that they would have to secure another one before they could start operation. This was the day before the discovery of the still. What Sims stated is plainly inadmissible. The portion of this to which they could legitimately testify was that John Sims, Charlie Hawkins, appellant and his wife were present at a still the day before its discovery by officers. Nothing is said about any mash. All this testimony is set into the bill of exception without any statement of any such facts as would show its materiality, and the bill might be disposed of upon the well known ground that a motion for continuance must on its face disclose *Page 370 the materiality of the testimony. Assuming, however, that the bill is sufficient in this respect, we are of the opinion that if the witnesses had been present and testified to the admissible portions of the statements set out above that it would not reasonably have inured to the benefit of defendant and that it is reasonably probable that on another trial it would not change the result. Under such circumstances there was no error in the court's action. Branch's P. C., Sec. 338; Rumbo v. State, 28 Tex.Crim. App. 30; Baggett v. State,151 S.W. 560. See also Branch's P. C., Sec. 306; Howard v. State, 8 Tex.Crim. App. 56; Stacy v. State, 177 S.W. 116.
The Sheriff testified in part:
"I saw Mr. Robinson and a boy that later turned out to be Charlie Hawkins stick their heads up in the mouth of this. * * * Mr. Robinson and his wife came up a bluff to this still. * * * He had black soot on his hands and his pants all blacked up and so was the young man's, and there was three barrels of mash * * * about thirty half gallon fruit jars, a ten gallon keg, and a lot of fruit jar rubbers and lids. * * * The first time I saw Mr. Robinson he walked up in the mouth of the still, sort of peeked out at us as we walked up. * * * He was trying to make a get-away. I was coming down the side of the fence. He saw me and ducked back."
Another of the raiding officers testified in part:
"Yes, I found three barrels of mash. I know what mash is. * * * This mash that I saw there certainly would make whisky. It was there in these barrels or the contents of what was still in the bottom, and liquid form, all sour and blubbering and boiling and ready for cooking, just needed a little cooking, that's all. I know it would make whisky."
Neither appellant nor his wife, who were shown to be present at the time, testified at the trial. Appellant was tried on the theory that he and others were in possession of mash for the manufacture of intoxicating liquor. The absent testimony was of such slight materiality, if any, in rebutting this theory that we cannot believe that appellant was hurt by its absence. It tended in fact to somewhat sustain the theory of the State. The bill might be disposed of on other grounds, but we have contented ourselves with quotations from the record to demonstrate the lack of cogency and materiality of this testimony, although its materiality should have *Page 371 affirmatively appeared by recitals in the motion for continuance, as already stated.
Believing the original disposition of the case was correct, appellant's motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
HAWKINS, J., absent.