The opinion
ON MOTION FOR REHEARING.
HAWKINS, Judge.
This is a companion case to that of Oscar Porter v. State, No. 12,614, in which opinion on rehearing was delivered October 23, 1929. An application for continuance in the present case was predicated on the absence of two witnesses, Eugene Keith and John Brown, the same as in the case just referred to. The contention is renéwed in appellant’s motion that the court was in error in refusing the continuance. Evidence heard upon the application revealed that Keith was a fugitive from justice. The diligence in taking out process for Brown is precisely the same as was shown in Oscar Porter’s case (supra) which was discussed at length in the opinion on rehearing. In that case it was held there was lack of diligence. The same holding follows here. The reasons fully appear in the opinion on rehearing in the companion case.
Another complaint renewed in appellant’s motion is directed at the reception of evidence from the officers regarding their efforts to, apprehend appellant. That point is also fully covered in the opinion on rehearing in Oscar Porter’s case (supra) .and will not be again discussed. .
It is contended that evidence of Nash, the alleged purchaser, as to M’Jaaland’s probable connection with the transaction was improperly received. The trial took place about four years after the
*327
claimed sale of whisky. Nash testified positively that he purchased whisky from appellant shortly before Christmas in 1924, and that he thought the purchase occurred on a Sunday. Over objection he stated that he did remember on one occasion that M’Jaaland contributed to a fund used by Nash in the purchase of whisky at the Kaufman hotel, but that he could not say at the time of the trial that the purchase in which M’Jaaland was interested was made from appellant. M’Jaaland testified that on a Sunday shortly before Christmas in 1924 he contributed to a fund with which Nash procured some whisky, but that witness did not know where Nash got it. The evidence is such that the jury would have been warranted in finding that the money contributed by M’Jaaland went into the purchase claimed to have been made by Nash from appellant.
We are constrained to adhere to the conclusion reached in our original opinion.
Appellant’s motion for rehearing will be overruled.
Overruled.