The opinion
LATTIMORE, Judge.
Conviction for selling intoxicating liquor ; punishment, one year in the penitentiary.
In this case appellant made application for a continuance because of the absence of two witnesses. It is shown that one of the witnesses was himself a fugitive from justice, and the averments in the application as to the residence of the other witness, and the diligence exhibited in an effort to procure his testimony, appear so vague, indefinite and unsatisfactory as to justify the learned trial judge in overruling said application.
Complaint is made that the State was permitted to ask the prosecuting witness to refresh his memory if he remembered who was with him a short time before he bought the liquor in question, and upon receiving a negative answer, that the State was permitted to name a party and ask witness if the party named was with him. The transaction in question had occurred several years prior to the trial, and we do not deem such question seeking to refresh the recollection of the witness to be improper. The answer to the question could be of no harm to the rights of appellant, the witness answering that he remembered being with the party named and that they chipped in so much each and bought whisky, but that he could not remember whether he bought it from appellant.
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The prosecuting witness testified positively that he bought some intoxicating liquor from appellant about the time alleged. We think no error committed in allowing the State to prove by another party than prosecuting witness, that about the time mentioned said other party contributed to a fund and gave it to prosecuting witness to go and get whisky, and that the prosecuting witness went and got same. This was for the consideration of the jury for what it was worth as proving the transaction in question. While this witness did not know from whom the prosecuting witness bought the liquor and did not undertake to say, he did affirm that about that time he contributed money which was given to prosecuting witness who then went away and bought the whisky. v
We regard the testimony of the officers, in effect, that they had a capias for appellant and were looking for her for several years, as admissible on the question of flight.
Finding no error in the record, the judgment will be affirmed.
Affirmed.