Parkhill v. State , 156 Tex. Crim. 580 ( 1951 )

DAVIDSON, Judge.

The driving, while intoxicated, of a motor vehicle upon a public highway is the offense; the punishment, a fine of $50.

A highway patrolman arrested appellant while driving his truck upon a public highway in Ector County. According to the testimony of the arresting officer, appellant was staggering drunk at the time; other witnesses corroborated that testimony. Appellant denied that he was drunk, but admitted having drunk two bottles of beer some time before his arrest; other witnesses testified that appellant was not drunk at the time.

Complaint is made of the overruling of a motion for a continuance which was requested because of the absence of the witness Payne, by whom appellant expected to prove that a short time prior to the arrest, he (appellant) was not drunk.

No affidavit of the absent witness that he would so testify was presented upon the hearing of the motion for new trial. The denial of a continuance is not error where it is not shown upon the hearing of the motion for new trial that the absent witness would, in fact, give the testimony alleged to be material (Shuler v. State, 132 Tex. Cr. R. 571, 105 S. W. 2d 1095) or that the absent testimony was probably true (McCulley v. State, 103 Tex. Cr. R. 126, 280 S. W. 223).

By Bill of Exception No. 2, appellant complains, jointly, of the entire direct examination of two witnesses and of portions of the testimony of other witnesses. Obviously, such a bill of exception is multifarious. The motion of the state challenging consideration of the bill is well taken for that reason. The bill as thus drawn presents nothing for review.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.