Sanders v. State

Offense, the unlawful possession of intoxicating liquor for the purpose of sale; penalty, one year in the penitentiary.

A witness for the State testified to two purchases of whisky from appellant on the same day, one of a pint and the other of a half gallon. His testimony was corroborated by other witnesses. Appellant's testimony, likewise corroborated, amounted to a denial of the transactions testified to by State's witnesses.

Only one bill of exception appears in the record, which presents the alleged error of the court in overruling appellant's application for a continuance on account of the absence of two witnesses. One of these witnesses was Bud Sanders, who appears to have been under indictment for an offense growing out of the same transaction for which appellant was indicted. It is clearly inferable from appellant's bill of exception presenting this matter that this witness was a fugitive from justice at the time appellant's case was called for trial. The court is not called upon to continue a case under such circumstances. Harris v. State, 8 Tex.Crim. App. 90; Vann v. State, 48 Tex.Crim. App. 14; Branch's P. C., Sec. 328. The other witness was Mrs. Tommie Ross whose residence is nowhere shown in the application for a continuance. Nor do we believe the application sufficiently shows the materiality of her testimony. The motion was correctly overruled as to this witness. Johnson v. State, 4 Tex.Crim. App. 272; Thomas v. State, 17 Tex.Crim. App. 439.

It is strenuously argued that the indictment was returned against witness Sanders for the purpose of depriving appellant of his testimony and that the record so shows. We cannot agree that the record is sufficient to show that the agencies of the law have been guilty of a thing so base and unworthy. The law question, however, could not be affected by this, if true, since we find a sufficient showing that such witness was a fugitive from justice, as above stated.

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

Affirmed.

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.

ON MOTION FOR REHEARING.