
    TRIPP v. STATE.
    (No. 10582.)
    Court of Criminal Appeals of Texas.
    Jan. 19, 1927.
    Rehearing Denied April 27, 1927.
    Petition to File Second Motion for Rehearing Denied May 11, 1927.
    1. Criminal law <@=3598(5)—Continuance for absent witness held properly refused for want of diligence.
    Refusal of continuance for absence of witness held not error, where no effort was made to secure his attendance for over two months after placing subpoena in hands of sheriff, who returned it with statement that witness could not be found in county, and no likelihood of securing his testimony by further postponement or continuance was shown.
    2. Criminal law <@=>l 120(8)—Bill of exception, not showing how defendant was affected by prosecuting witness’ testimony in embezzlement trial as to knowing and meeting certain lawyer, showed no error In admission thereof.
    Bill of exception to.admission of prosecuting witness’ testimony, in trial of attorney for embezzlement, as to knowing and meeting with certain lawyer, showed no error, where it failed to point out how defendant was affected thereby.
    3. Criminal law <@=>l 120(8)-<— Bill of exception to admission of testimony must set out sufficient facts to enable court to determine that testimony was inadmissible.
    Bill of exception to admission of testimony must set out sufficient facts in and of itself to enable court to determine that testimony was inadmissible; otherwise court will presume that trial court’s ruling was correct.
    4. Witnesses <©=5287(1) — Prosecuting witness’ redirect testimony, explaining her testimony on oross-examination in trial of attorney for embezzlement that she employed another attorney, held admissible.
    Where prosecuting witness testified on cross-examination in trial of attorney for embezzlement that she employed another attorney, she was properly permitted to explain on redirect examination that she never employed such attorney, nor agreed to pay him anything, but intended to pay him if she ever got anything.
    On Motion for Rehearing.
    5. Criminal law <©=>917(2) — Refusal of new trial to secure witness, for whose absence continuance was properly denied for want of diligence, held not abuse of discretion.
    Refusal of new trial to give defendant opportunity to secure witness, for whose absence continuance was properly denied for want of sufficient diligence, held not abuse of discretion, in absence of showing of any effort by defendant or his attorneys to locate witness from 'March 26, when ease was first set for trial, until June 10, when it was finally tried.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Thomas C. Tripp was convicted of embezzlement, and he appeals.
    Judgment reformed, and affirmed as reformed.
    John L. Poulter, of Port Worth, and W. 0. Linden, of San Antonio, for appellant. ■
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of embezzlement in the criminal district court of Tarrant county, and his punishment assessed at six years in the penitentiary.

Briefly stated, the record shows that the appellant was an attorney at law practicing in the city of Port Worth, and that Miss Lizzie Alexander delivered to him, for the purpose of collection, two insurance policies, upon which the appellant collected the sum of $836. It was the contention of the state, and evidence was introduced to that-, effect, that the prosecuting witness, Miss Alexander, received only $31 of this sum from the appellant. While the appellant failed to testify, he introduced evidence to the effect that the prosecuting witness was paid by him the sum of $325 in cash, and that she authorized him to buy for her $300 worth of stock in an oil company out of the remainder due her, which, in connection with his commission, absorbed all of said amount, and that he had a full and final settlement with her in regard to this transaction.

We find three bills of exception in the record. Bill of exception No. 1 complains of the refusal of the court to grant the appellant’s application for a continuance, based upon the want of the testimony of one J. J. Garrett. This application was contested by the state, and it appears that Garrett had never been subpoenaed and ho effort had been made to secure his attendance other than making an application for subpoena and. placing same in the hands of the sheriff, who returned said application on the 7th of April with the statement that the witness could not be found in Tarrant county. It further appears that the sheriff thereafter informed the appellant’s attorneys that he was unable to locate said witness; that the case was postponed on one occasion at the instance of the ■ appellant on account of sickness in his family, and did not come to trial until June 10, 1926; and that no effort was made to secure the attendance of said witness during this interval, nor was there any showing made of any likelihood of securing this testimony by a further postponement or continuance of the case. This bill, as presented, shows no error.

Bill of exception No. 2 complains of the action of the court in permitting the prosecuting witness, Lizzie Alexander, to testify that she knew a lawyer by the name of Lipscomb and met him about the middle of August. The objection to this testimony was that it was irrelevant and incompetent. This bill, as presented, shows no error, in that it fails to point out how the acquaintanceship or meeting with this lawyer affected the appellant in any manner. This court has repeatedly held that a bill of exception complaining of the admission of testimony, to be sufficient, must set out sufficient facts in and of itself to enable the court to determine that said testimony was not admissible. Otherwise the court will presume that the ruling of the trial court was correct. Hennington v. State, 101 Tex. Cr. R. 12, 274 S. W. 599. Many other authorities to the same effect could be cited if necessary.

Bill of exception No. 3 complains of the action of the court in permitting the prosecuting witness to testify to the facts concerning her employment of the attorney, McLean. This bill, as presented, shows no error. It appears that said witness, on cross-examination by appellant’s counsel, testified that she employed said attorney in August, and upon redirect examination by the state she was permitted to explain that she had never employed said attorney and never agreed to pay him a cent, but intended to pay him if she ever got anything.

The sentence in this case commits the appellant to the penitentiary for the full period of six years, contrary to article 775, O. C. P. Said sentence is reformed, under article ■847, O. C.P., so as to read that the appellant is committed to the penitentiary for not less than two and not more than six years.

After a careful examination of' the entire record, we are of the opinion that the judgment of the trial court, as reformed, should be affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant urges in his motion for rehearing that in view of the evidence the court below should have granted a new trial to give him an opportunity to secure the witness, Garrett, conceding that diligence was wanting in the effort to have him present when the case was tried. The application for continuance is totally lacking upon its face in any showing of diligence. The state resisted the application on that ground. Upon a hearing before the court regarding the matter, certain facts’ were agreed to which are embraced in the bill of exception. From the bill we glean the following information: In November, 1925, in a disbarment proceeding against appellant, Garrett testified with reference to the matters set out in appellant’s . application • for continuance; neither appellant nor his attorneys had ever seen him since.that time nor had any information as to his. whereabouts further than that given in the application for process. On March-26, 1926, an order was entered setting the present case for trial on April 7th. On March 30th appellant filed application with the clerk for process to issue for witnesses, among whom was Garrett, whose avocation and address was given as “Circulation Distributor, North Eort 'Worth.” When the case was called for trial on the 7th day of April Garrett was not present, the sheriff’s return showing that he could not be found in Tarrant county. Upon application of appellant the trial was postponed, not because of Garrett’s absence, but on account'of the illness of appellant’s wife and a child of appellant’s attorney. On the 20th day of May said cause was again set down for trial on June 2d. Appellant’s attorney was notified by the clerk, who inquired if any process was desired.' The attorney requested process to issue ofi'the old application. The clerk requested additionál information about Garrett.' Appellant’s attorney advised that he had none but would report if tie secured any! On May 26th process was reissued for Garrett with same notation as originally. As soon as that process was placed in the deputy sheriff’s hands on .the day it was issued he also telephoned -appellant’s attorney asking additional- information'-' about Garrett's whereabouts. Appellant’s attorney reported to that officer the same as he had to the clerk, with the same promise. No such information was ever conveyed either to the clerk or the sheriff’s department. When the case was called for trial on June 2d appellant and his attorneys were present and knew that Garrett was absent. Owing to the absence of one of the state’s witnesses the trial was postponed to the 10th day of June. During all that time if any effort was made by appellant or his attorneys to locate Garrett the record fails to show it. It is fair to assume either that they could not secure additional information as to his whereabouts or made no effort to do so. Viewing the whole case, it does not occur to us that the trial judge abused his discretion in declining to grant a new trial on account of the absence of the witness. The record indicates that there was little probability of securing the witness if the continuance had. been granted, or that his presence would have changed the result of the trial. It does not appeal to us as presenting one of the exceptional cases where this court has occasionally held that, a new trial should have been granted although the continuance was properly denied for want of sufficient diligence.

Appellant’s motion for rehearing is overruled. 
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