Gerstenkorn v. State

HEHDERSOH, Judge. Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $100 and sixty days confinement in the county jail, and appeals. Appellant complains of the action of the court in overruling his motion for a continuance. The motion for a continuance was based on the absence of J. L. Doggett. Ho process had been issued for said witness, and it does not occur to us that the diligence used in regard to this witness was sufficient. Evidently appellant must have known beforehand that the State would use certain testimony coming from the office of said witness. This is made apparent by the controverting affidavits of the State. Besides this, we do not believe the testimony of said Doggett, if admissible, could be considered as material in this case. The sale of the liquor by appellant to the prosecutor, Sturgess, was proved by positive testimony, and that it was whisky, and this was not controverted by the appellant. As stated above, it is doubtful, had *627 Doggett been present, that the defendant would have been permitted to prove by him what is alleged in the application, to wit, that at the time he procured the internal revenue license from Doggett he told him he was not intending to engage in the business of selling intoxicating liquors, but he might desire to sell nonintoxicating beverages. This did not legally qualify the effect of the internal revenue license. [Rote.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.] Appellant also made a motion to postpone the case while the trial was in progress. As to the witness Williams, it appears that appellant intended to have him present as a witness, and by his own neglect said witness was not in attendance. Said witness had been subpoenaed, and before appellant announced “ready” in the case, if he depended on the testimony of said witness, he should have known that he was in attendance. The fact that he had said witness subpoenaed in the case would suggest that said testimony was not newly discovered; but appellant, was already informed, both as to his testimony and that of the witness, Lester. The testimony of both of said witnesses is merely to impeach the witness Sturgess as to statements claimed to have been made by Sturgess to them, to the effect that shortly after the information was, filed in this case said Sturgess stated to them that he had never at anytime bought any intoxicating liquor from the defendant. Ordinarily,, the postponement of a case or a continuance will not be granted for impeaching testimony. The testimony of Long in regard to the examined copy from the book of J. L. .Doggett, internal revenue collector of the Fourth District, showing the procurement by appellant of a license as, a retail liquor dealer to pursue said occupation in Cleburne, from July, 1896, for one year, was properly admitted in evidence. See Gersteman v. State, 35 Texas Crim. Rep., 318. The judgment is affirmed. Affirmed.