De Shazo v. State

Appellant files an interesting motion reviewing various contentions made by him which were passed on in our original opinion. He also raises the point that we did not pass upon his bill of exceptions complaining of the refusal of a second application for a continuance. Said application was based on the absence of three witnesses and was filed September 15, 1924, and by its terms showed that subpoena had been issued for said witnesses in October, 1923. Said bill is qualified by the learned trial court with the statement that no diligence appeared, as the court had been in session since September 1, 1924, and no attachments had been asked for said witnesses. Admitting that following appellant's conviction in October, 1923, an appeal and reversal of the case was had in June, 1924, and that the case was back upon the docket of the trial court at the September term, 1924, and that said court had been in session since the first of September and no additional process had been asked for said witnesses up to the time the case was called for trial, this would seem to demonstrate the correctness of the qualification appended to said bill by the trial judge. We think the application fails to show diligence. The burden is on the accused to make an affirmative showing of the diligence used by him to procure the presence of his witnesses. If they are not present on the day set apart for the call of the criminal docket and the setting of the cases for trial, it becomes his duty to procure the issuance of alias process, and if the witnesses have been subpoenaed and fail to be present at such time, the accused would be entitled to an attachment for them. Henry v. State, 38 Tex.Crim. Rep.; Harvey v. State, 35 Tex.Crim. Rep.; Hill v. State, 18 Tex. Crim. 665.

Appellant cites the cases of Johnson v. State, 266 S.W. Rep. 155, and Roark v. State, 276 S.W. Rep. 242, as opposed to our holding that the testimony as to sales made by him of intoxicating liquor several months before the date of the alleged possession for the purpose of sale, was competent. There was no question of intention or purpose in either of the cases cited. Same were charges of manufacturing intoxicating liquor and we held that proof of separate disconnected transactions shed no light upon any issue properly arising in such cases. Our holdings there have no relation to the principle here involved. This court has always held that in cases where the intent or purpose in a given transaction becomes a material issue, that it is proper to prove other offenses or transactions which shed light upon such purpose or intention. When one is charged with the possession of intoxicating liquor for the purpose of sale and there is proof of the possession of such liquor, his intent becomes an issue. Upon such issue, antecedent sales of intoxicating liquor may become relevant when not too remote in point of time or relationship to the transaction under investigation. In the present instance, the court having received the testimony, which might under some circumstances be admissible, it devolved upon the appellant, by his bill of exceptions, to show that the ruling was wrong. The bill of exceptions relied upon in the present instance is not sufficiently specific in the facts set out to overcome the presumption that in receiving the testimony the trial court was not within the rules of evidence.

We do not think we can add anything to what we said regarding the qualification of juror Ballard in our former opinion. Appellant cites the case of Willis v. State, 9 Tex.Crim. App. 298, but it presents no question of the waiver of the right of the accused to object, or of the willingness to take a juror who had formerly sat in the same or similar trial. Said case presented on the appeal the proposition that appellant objected in the court below and tried in every way he could to rid himself of the juror deemed by him objectionable. No such facts appear in the record before us.

Being unable to agree with the contentions made, the motion for rehearing will be overruled.

Overruled.