No. 9732. | Tex. Crim. App. | Jun 25, 1926
Lead Opinion
From conviction in the Criminal District Court of Harris County of the offense of robbery, with punishment fixed at five years in the penitentiary, this appeal is taken.
For opinion upon the former appeal of this same case, see Walker v. State,
Bill of exceptions No. 1 complains of the refusal of a continuance. When an indictment is returned in October, 1923, and there is no showing of the issuance of process until May, 1925, and no reason set out justifying or excusing the failure to ask for process earlier, sufficient diligence is not shown. The burden is put upon one asking for a continuance to affirmatively show diligence. We further observe that the testimony expected from witness, Young, appears inadmissible, and that the conversation had with prosecutrix, Ruby Middleton, which appellant says he could prove by the witness, Harrington, would be only admissible in the event of a denial thereof by prosecutrix. Reference to the statement of facts discloses that she was not asked about this conversation on the trial. There is no legal presumption that had she been asked, she would have denied it, if true. We pass on applications for continuance in the light of the evidence adduced on the trial. Branch's Ann. P. C., Sec. 305. The bill presents no error.
Bills Nos. 2, 3 and 4 are not in such form as to call for a ruling from this court. As illustrative, we quote from bill No. 3, as follows:
"The defendant undertook to prove on cross-examination of prosecuting witness, Ruby Middleton, that she had remained at the Young Women's Co-Operative Home only a short time after going there to live and that she was requested to leave said home because of her general bad character as a common prostitute; and, that if defendant had been permitted by the court he would have followed this line of evidence and would have shown that prosecuting witness, Ruby Middleton, had been driven from place to place prior to, at the time of and since the alleged offense and had been required to leave the various places where she had engaged lodging because of the general bad reputation and conduct of the said Ruby Middleton," etc.
Such a bill brings before us nothing tangible. How did appellant "undertake to prove on cross-examination of prosecuting witness that she had remained at the Young Woman's Co-Operative Home only a short time after going there to live and that she was requested to leave said home because of her general bad character?" etc. Were not questions asked prosecutrix on cross-examination? If so, what were they? What was the objection to the question? Was it to the form or substance of the same? We are not informed by the bill, we do not know, and hence cannot say. In this connection, we might observe, in regard to the matters contained in each of said bills, that there was no *144
testimony offered by appellant from any witness that prosecutrix was a common prostitute, or that she had ever been charged or convicted of an offense involving such character. Chase v. State,
Bill No. 5 presents complaint that the state on cross-examination of defense witness, Castelo, asked him if he had seen appellant at the place of the alleged assault with "those other girls." No facts are set out in the bill from which we could derive information as to the materiality of such an inquiry. Whose "those other girls" might be, or how said question or its answer could injure appellant, nowhere appears; nor does the bill set out the answer of the witness.
Testimony that on the evening of the alleged assault, and after same occurred, prosecutrix was nervous, crying and all worked up, was admissible. Branch's Ann. P. C., Sec. 1784, collates authorities.
The testimony seems sufficient to support the finding of the jury. Prosecutrix testified that on the pretense of wanting to employ her at his home appellant asked her out in the woods where he assaulted her and by means of the assault and the use of a pistol forcibly took from her money and rings.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
I doubt the correctness of the conclusion reached, but will not write upon the subject.
MORROW, Presiding Judge.
Addendum
Appellant insists that we were in error in disposing of his bill complaining of the refusal of continuance. It was his second application. As to witness, Young, the application shows entire lack of diligence. We must pass upon these matters from what we find alleged in the request for continuance in the light of the facts proven. Upon its face the application shows insufficient diligence in securing process for the witness, Mrs. Harrington, but it had been served and, in response, she was in court on May 18. The case was not tried *145 at that time. Why it was not the application fails to show. When the case was called for trial on June 1 this witness did not appear. Conceding diligence as to her, the testimony expected was impeaching as to one feature of it and cumulative as to another. Under such circumstances the trial court committed no error in refusing the continuance.
We have again examined bills of exception 2, 3 and 4, in view of appellant's insistence that they were incorrectly disposed of. The bills are very general as pointed out in our original opinion, and perhaps should not be considered on that account but construing them most liberally, we nevertheless are of opinion they do not present error. Ruby Middleton was the party alleged to have been robbed. She testified that appellant not only robbed her but forcibly raped her. Appellant did not testify, and his chief defense centered around an attack upon the prosecuting witness. The bills disclose that appellant was seeking to show her bad moral character by specific acts of herself and others, and that her general reputation was bad for associating with those whose characters were also bad. In McIntosh v. State, 91 Tex.Crim. Rep.,
The motion for rehearing is overruled.
Overruled. *146