Robinson v. State , 53 Tex. Crim. 565 ( 1908 )

BROOKS, Judge.'

This conviction was for violating the local option law, the punishment assessed being a fine of $100 and sixty days im.prisonment in the county jail.

• The indictment in this case charges the defendant with selling on or about the 30th day of December, 1907, intoxicating liquor to one J. O. B. Smith. Appellant introduced a plea of former conviction, the indictment charging the same date for selling to the same party, but the proof in this case shows that the same were different transactions, and hence the plea was properly overruled. A matter of this kind would not be a basis for quashing the indictment, but the proof must show that appellant was convicted of the same offense. The burden of proof is upon him to so show.

There was no error in the court overruling the application for postponement to procure the attendance of witnesses, the application not showing that the witnesses’ testimony would be material or probably true.

It was not error for the court to permit the prosecuting witness to state the time and hour of the day he secured the whisky from appellant. This is very necessary where one or more sales are charged on the same day.

Appellant further complains of the definition the court gave of his sale. There was no error in this as indicated in several opinions rendered by this court at the last sitting.

Finding no error in the record, the judgment is affirmed.

Affirmed.