Opinion
No. 12672.
Delivered October 30, 1929.
1. — Intoxicating Liquor — Continuance — Surprise.
Where the indictment charged a sale of whiskey "on or about the 19th day of January, 1929," and appellant claimed surprise when the evidence offered showed a sale on the 18th of January, in that he had prepared to prove an alibi on the date alleged, the bill of exceptions failing to show that appellant had conferred with the witnesses or that he had been misled as to the date, or that by a postponement he could have secured testimony to meet, explain, or overcome the case made by the State, no error is shown.
2. — Continuance — Bill of Exceptions.
Bill of Exceptions must inform appellate court, not only that a wrong has been done the accused, but that by means thereof he has been injured.
Appeal from the District Court of Harrison County. Tried below before Hon. Reuben A. Hall, Judge.
Appeal from a conviction for selling intoxicating liquor, penalty one year in the penitentiary.
The opinion states the case.
Scott, Casey Hall of Marshall, for appellant.
John E. Taylor, County Attorney, of Marshall, and A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.
The case appears to be fully made out by the facts in evidence, as shown by the statement of facts. There is but one bill of exceptions. Same complains of the refusal of the court to grant a postponement or continuance applied for after the trial had begun. It appears therefrom that the State witnesses testified to a sale of intoxicating liquor made by appellant on the 18th of January, 1929, and that the allegation in the indictment was of a sale "on or about the 19th day of January, 1929." It is averred further that appellant was surprised at the proof, and that he had prepared himself to defend by showing an alibi on the date laid in the indictment, to-wit: the 19th. Nothing in said bill shows that appellant had conferred with the witnesses at any time, or that he had been misled by them as to the date concerning which they would testify. Nor is there any showing therein that by a postponement or continuance he could have secured testimony to meet, explain or overcome the case made by the State's testimony. We think the bill shows no error. The defendant must use diligence in the preparation of his case for trial. The bill of exceptions must inform this court sufficiently, not only that a wrong has been done the accused, but that by means thereof he has been injured.
Finding no error in the record, the judgment will be affirmed.
Affirmed.