Krenek v. State

BAKER, Judge. The appellant was indicted, tried and convicted in the District Court of Milam County for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at twelve months confinement in the penitentiary. This appeal is predicated upon bills of exceptions two, three and four. Appellant complains of the action of the trial court in refusing his application to postpone his trial for the testimony of Dr. W. R. Newton. The record discloses that Dr. Newton was resident citizen of Milam County, had been for many years, but was in Chicago temporarily taking lectures. That four of appellant’s children were suffering with whooping cough, and that he consulted said witness, Dr. Newton, and was advised by him to get whiskey for them or that whiskey would be good for them and after some effort to buy whiskey in which he failed, he was making or attempting to make intoxicating liquor when the officers arrested him. The application for postponement, and contest by the state show that the indictment was filed January 9, 1924, and on January 11, following, the case was set for trial on February 20th, 1924, and by agreement between counsel for State and defendant, counsel for defendant was notified of the date for trial on 11th of January, 1924, and said counsel for defendant had subpoena issued for said witness, Dr. Newton, of January 14th, 1924, which was not executed because said witness on said date had left home for Chicago. When this case was called for trial on February 20th, 1924, a continuance was granted to defendant for the want of the testimony of said *141 witness, Newton. The case was called again for trial on March 26th and appellant made said application for a postponement of said trial to obtain the said testimony of said witness, Dr. Newton, which alleged from information of his wife that he was supposed to have returned a week prior to March 26th, 1924, and was expected now to return home about April 10, 1924, to which time appellant was seeking to have said trial postponed. The record further discloses that subsequent to the date of consulting Dr. Newton relative to obtaining whiskey, sometime thereafter Dr. Hubert was called to attend said children and prescribed whiskey for them. The State’s contest to said postponement shows that the trial court in granting the first application" for this witness admonished appellant’s counsel to take his depositions, and we presume that the court refused to postpone same because of a failure to do so. The statute does not authorize the taking of depositions of resident witnesses temporarily out of the State. Vernon’s C. C. P. Art. 818. In the case of Mooney v. State, 273 S. W. 257, and cases therein cited this court held that the appellant was entitled to the testimony of a physician to show he prescribed and advised whiskey for him. After a careful consideration of this bill we have concluded the postponement should have been granted, or a new trial awarded to appellant in view of the testimony adduced upon the trial of this case, showing the materiality of the testimony of Dr. Newton. In bill of exception No. 3 complaint is made to the refusal of the court to instruct a verdict of acquittal. We are unable to agree to the contention made by counsel in this particular. ' Appellant complains in bill four on account of the court refusing his motion to require the state to elect upon which of the two counts in the indictment it would rely for conviction. There is no merit in this contention, and there could not possibly be any error in this instace as the verdict was returned on the second count. For the error above mentioned, we are forced to hold that this case should be reversed. Reversed and remanded. Reversed and remanded. 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.