Gipson v. State

McCORD, Judge.

This is a conviction for a violation of the local option law with a penalty of twenty-five dollars and twenty days in jail.

Appellant made an application for a continuance in the court below for the want of the testimony of Flora Pollard, by whom, it is shown, he expected to prove that at more than one time at the home, of witness and more than one time at the homes of Alice Lewis, wife of the prosecuting witness, Alex Lewis, the witness heard a conversation between prosecuting witness and his divorced wife, Alice Lewis, in which prosecuting witness agreed with the said Alice Lewis that if it would satisfy her he would make a complaint against the defendant, but at all times stated that he had not bought any whisky from defendant, and that these conversations took place when no one was present but Flora Pollard, the prosecuting witness, Alex Lewis, and Alice Lewis. It may be conceded that the application shows diligence. This was the second application for a continuance. The qualification to the bill of exceptions overruling the motion for continuance, by the judge, states that the application was made orally and that the appellant stated that the witness Flora Pollard heard the conversation mentioned and that other witnesses were present at the time. One of the requisites of an application for continuance is that the facts expected to be proven by the absent witness can not be proved by any other source known to the applicant. How, if this conversation was had in the presence of the other witnesses, Andrew Bell and Van Pollard, then he was able to prove it by other witnesses and he would not be entitled to a continuance.

On the trial of the case appellant placed several witnesses on the stand, to wit: Bud Biggers, Bob Malone, Nancy Beese and Andrew Bell, all of whom testified that they were present at Van Pollard’s house and that Flora Pollard was present and that they heard prosecuting witness say to Alice Lewis that appellant had never sold him any whisky. When the judge’s explanation, with the statement of facts, are taken together it will be seen that the same facts were proven by other witnesses, and, therefore, being a second application for continuance it was addressed to the discretion of the court and was prop' erly overruled. Also upon another ground, and that is, the object and purpose of the testimony was to impeach the State’s witness, Alex Lewis, by proving statements contradictory to what he testified on the witness stand. A continuance is never permissible to secure testimony for impeaching purposes. We, therefore, hold the court below did not err in refusing to grant a continuance. The application was made for a continuance, as before stated, for the witness Flora Pollard.

We find in the record bill of exceptions No. 2, which complains that the court, in overruling the application, stated in the presence and hearing of the jury that the witness Flora Pollard and Andrew Bell had run away together. It is claimed that this statement was prejudicial to appellant because Andrew Bell was a material witness for the defense and that the same would have a tendency to discredit said Bell before the jury. The court states in his qualification to this bill that the remark was made to the clerk, Mr. Smith, while the judge was on the bench, and not to the juryj and that he does not think the jury heard the remark, as it was not intended for them. In'the absence of an affidavit that the jurors heard the remark or in some way showing that this remark got to the jury, was heard by them and in some way affected their verdict, or that they considered same in discrediting the witness Bell, we are inclined to think that the bill of exceptions is without merit.

The other bills of exceptions relate to the orders of the Commissioners Court putting prohibition in effect. These can not now be considered, as they show prohibition has been in effect in that county for several years and no contest has been made or is pending.

We have examined the record, and finding no error of- a prejudicial character, the judgment is in all things affirmed.

Affirmed.