Appellant was convicted of violating the local оption law, and his punishment assessed at a fine of $100 and sixty days сonfinement in the county jail, and appeals.
Appellant complains of the action of the court in ovеrruling his motion for a continuance. The motion for a cоntinuance was based on the absence of J. L. Doggett. Ho process had been issued for said witness, and it does not оccur to us that the diligence used in regard to this witness was sufficient. Evidently appellant must have known beforehand that the Stаte would use certain testimony coming from the office оf 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 thе prosecutor, Sturgess, was proved by positive testimony, аnd that it was whisky, and this was not controverted by the appellаnt. As stated above, it is doubtful, had *627 Doggett been present, that the defendant would have been permitted to prove by him whаt 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 nоt legally qualify the effect of the internal revenue license.
Appellant also made a motion to postpone the casе while the trial was in progress. As to the witness Williams, it appeаrs that appellant intended to have him present as а 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 depеnded on the testimony of said witness, he should have known that he wаs in attendance. The fact that he had said witness subpoеnaed in the case would suggest that said testimony was not newly disсovered; 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 stаtements claimed to have been made by Sturgess to them, tо the effect that shortly after the information was, filed in this case said Sturgess stated to them that he had never at anytime bоught any intoxicating liquor from the defendant. Ordinarily,, the postpоnement of a case or a continuance will not bе 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 occupatiоn in Cleburne, from July, 1896, for one year, was properly admitted in evidence. See Gersteman v. State,
Affirmed.