
    NESBITT v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.
    Rehearing Denied March 26, 1913.)
    1. Criminal Law {§ 598) — Continuance-Diligence.
    Where the witness for whose absence continuance was asked had moved to another county after he was summoned, and no additional process was issued for him in such county, there was not sufficient diligence to authorize a continuance, in absence of a showing as to why accused had not issued additional process for the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Larceny (§ 50) — Admission of Evidence.
    In a prosecution for theft of- the proceeds of another’s check, evidence was not admissible that, some time after accused had cashed the cheek and appropriated the money, the prosecuting witness was in accused’s office, and accused was trying to sell him a life policy, and that witness replied that he did not have the money, and accused offered to let him have the policy on what .he owed him.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    3. Witnesses (§ 277) — Cross-Examination of Accused.
    Where, in a prosecution for theft of the proceeds of another’s check, accused stated on his direct examination that he had frequently assisted prosecuting witness, he could be asked on cross-examination whether he ever signed any notes for prosecuting witness; the answer being, “No.”
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.]
    4. Criminal Law >(§ 1091) — Appeal—Bill of Exceptions.
    Where the connection of a question asked on accused’s cross-examination, with his other evidence, was not shown by a bill of exceptions to a ruling permitting the question, the bill was incomplete.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 282S-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    
      5. Criminal Haw (§ 1169)—Appeai>—Harm-less Error—Admission of Evidence.
    Any error in admitting evidence was immaterial to accused, where he brought out the same matter on cross-examination of a witness for the state.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 3088, 3137-3143; Dec. Dig. § 1169.:]
    6. Criminal Law {§ 1169)—Admission of Evidence.
    In a prosecution for theft of the proceeds of another’s check, a letter was admitted in evidence- which was written by accused to the owner of the check, and stated that the latter knew that what accused had done was as intentionally honest as any one, considering that accused spent lots of money on the campaign, and because of his ill health, and that he meant no wrong, and did not desire to beat the witness out of the money and intended to pay him the amount he owed him, as well as take up certain notes. The subject of the prosecuting witness’ signing other notes for accused was gone into by accused in prosecuting witness’ cross-examination, and the state was not permitted to disprove the self-serving declarations in the letter. Held, that the admission of the letter was not prejudicial error.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §.§ 3088, 3137-3143; Dec. Dig. § 1169.]
    7. Criminal Law <§ 1091)—Appeal—Bill of Exceptions.
    A bill of exceptions to the admission of evidence which does not set out the questions asked or answers cannot be reviewed.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 281S, 2819, 2823, 2S28-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    G. M. Nesbitt was convicted of theft, and' appeals.
    Affirmed.
    S. P. Sadler, of Gatesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series .& Rep’r Indexes
    
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series .& Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of theft of property of over $50 in value, and his punishment. assessed at two years’ confinement in the penitentiary.

This is -the second appeal in this case, the opinion on the former appeal being reported in 144 S. W. 944, and the facts are there sufficiently stated not to need repetition here.

An application for a continuance was made on account of the absence ol’ Davis Trout. The qualification of the bill shows that since the witness was summoned he had moved from Coryell county to McLennan county, and no additional process had been issued for this witness in that county. Appellant in his application states no reason why he had not had additional process issued, and under these circumstances the diligence is insufficient.

In the next bill appellant complains the court would not permit him to prove that some time after appellant had cashed the cheek and appropriated the money H. L. Smith, the prosecuting witness, was in appellant’s office, and appellant was trying to sell him a life insurance policy, and that Smith replied he did not have the money, when appellant offered to let him have the policy on what he owed him. This would not show, nor tend to show, whether or not he had authority to use the check at the time he appropriated it, and the court did not err.

Appellant again complains of the admissibility of the testimony of Leake Ayres. On the former appeal we held this testimony admissible, and we see no reason to revise that ruling, especially in the light of the qualification of the court to the bill. Stephens v. State, 49 Tex. Cr. R. 492, 93 S. W. 545.

In the fourth bill it is shown that, while appellant was testifying on cross-examination, he was asked, “Have you ever signed any notes for Herman Smith?" to which the witness answered, “No, sir.”

The connection or want of connection of this question with the other testimony of this witness is not shown in the bill, and therefore it is incomplete, but the court in approving same states that appellant while-testifying on direct examination had stated he had frequently rendered assistance to Herman Smith, and on cross-examination he-was being asked as to what assistance he had rendered, and this question among others was propounded.- As thus explained, there-was no error in the ruling of the court.

There was no error in admitting the letter of Miller & Morgan to appellant in evidence, as it was rendered necessary to render-intelligible the letter of appellant in reply thereto. The only objection made was to-the sentence which referred to the notes which Smith had signed for appellant As appellant, while cross-examining Smith had elicited the fact that Smith had signed these notes, this matter presents no error. Neither was there any error in the court admitting the letter of appellant to Smith dated March 24, 1909. In this letter he says: “You know what I have done has been as intentionally honest as any one could, considering that I spent lots of money on the compaign, and on account of my ill health. I have meant no wrong, or desire to beat you out of a cent. * ■* * I intend to pay you the $60 which I owe you as well as take up the notes at the bank as soon as I can.” The court in approving this bill states: “The subject of Slmith’s signing other notes for Nesbitt and their renewal, etc., was gone into by defendant in the cross-examination of Smith. Nes-bitt’s version of the matter, other than as-to the $60 check on which this prosecution is based, while clearly self-serving, was not permitted to be contradicted nor disproven by the state.” As thus explained there was no-error in the ruling of the court.

In bill No: 7 a question is set out as asked by the district attorney, but no answer is-given, and the court in approving the bill states the objection was sustained, and no-answer permitted. As the court sustained the objection, there is no room for complaint.

The bill which complains of the testimony of the witness Morgan does not set out the question propounded, nor the answers given, nor give in substance nor in detail any portion of the testimony admitted. So it is not presented in a way we can review it.

The criticisms of the charge of the court present no error. It is a full and fair presentation of' the issues involved in the ease, and the evidence offered in behalf of the state supports the verdict. The remarks of the district attorney* complained of should not have been used, if used. The bill as approved leaves it in some doubt as to whether this language was used, but, conceding that it was used, no exception was reserved or special charge asked in regard thereto until some time after the jury retired, and it is not of that inflammatory nature for which we would feel authorized to reverse because of its use alone, especially so as appellant was given the lowest penalty authorized in law.

All other questions were passed on in the opinion on the former appeal, and the judgment is affirmed.  