
    EVERSOLE v. STATE.
    (No.10808.)
    Court of Criminal Appeals of Texas.
    March 23, 1927.
    Rehearing Denied May 4, 1927.
    1. Criminal iaw 1144(18)— Presumption is that court did not abuse discretion in overruling motion for new trial, where evidence was not brought forward in record.
    Where evidence offered on motion for new trial was not brought forward into bill of exceptions nor elsewhere in record, presumption is that trial court did not abuse discretion in overruling motion for new trial wherein denial of application for continuance because of absence of witnesses was assigned as error and that evidence warranted him in finding that facts expected to be proved by absent witnesses were probably not true and would not in any way have affected verdict.
    2. Criminal law <®^III5(2) — Bill of exception to overruling challenge to juror did not show error without showing defendant was forced to accept objectional juror.
    Bill of exception complaining of overruling challenge for cause to juror held not to show error, in absence of showing that defendant had exhausted all peremptory challenges and was forced to accept an objectional juror.
    3. Larceny <®=>43 — Evidence, in, prosecution for cattle theft, relative to roping animal with another’s brand in defendant’s pasture, held admissible.
    In prosecution for cattle theft, testimony relative to roping animal in defendant’s pasture which carried brand of another held admissible as tending to connect defendant with animal belonging to another person.
    4. Witnesses <3=>345(4) — Witness may not be impeached by mere showing that he had been in jail.
    Witness cannot be impeached by mere showing that he had been in jail, not in any way tending to show that he had ever been convicted or charged with felony or offense involving moral turpitude.
    On Motion for Rehearing.
    5. Criminal law <®=>1156(1) — Order refusing new trial will not be disturbed, in absence of abuse of discretion.
    In absence of showing in record to effect that trial judge’s refusal of motion for new trial was an abuse of discretion, his action will not be disturbed.
    Commissioners’ Decision.
    Appeal from District Court, Fort Bend County ; M. S. Munson, Judge.
    Otis Eversole was convicted of cattle theft, and he appeals.
    Affirmed.
    F. O. Fuller and C. H. Chernosky, both of Houston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of the offense of cattle theft, and punishment fixed at two years in the penitentiary.

We have carefully read the statement of facts in this case and have concluded the evidence is sufficient to sustain the verdict of the jury.

The first bill of exception complains of the action of the court in overruling the ap-pellant’s second application for a continuance based on the absence of the witnesses- S. Dement, Ben Rainey, and Wilbur Rainey. The ruling of the court was assigned as errór on a motion for a new trial. The state appeared by her attorney, and the appellant in person and by his attorney, and the court heard the evidence on the motion for a new trial 'and overruled it. The evidence offered on the motion for a new trial was -not brought forward into .the bills of exception nor elsewhere in the record. The presumption is that the court did not abuse its discretion in overruling the motion, and that the evidence warranted him in finding that the facts expected to be proved by the absent witnesses were probably not true and would not in any way have affected the verdict of the jury. In the case of Cruz v. State (Tex. Cr. App.) 272 S. W. 486, Judge Hawkins, writing for the court on a motion for rehearing, stated as follows:

“It is the trial judge who must grant or refuse the new trial, and hence with him necessarily must rest the judicial discretion of determining whether the alleged absent testimony is probably true in view of all the other evidence heard during the trial.”

A careful review of the record in this case discloses no abuse of that discretion lodged in the learned trial judge in passing upon appellant’s application for a continuance and motion for a new trial.

In another bill of exception appellant complains of the action of the learned trial judge in overruling his challenge for cause to a juror whom he contends was disqualified. This bill does not show that the appellant had exhausted all of his peremptory challenges, and neither does it show that he was forced to accept an objectional juror. As presented, this bill shows no error.

Appellant, by bill of exception, complains of the action of the trial court in permitting the witness Oscar Scott to testify that the witness Willie Ruskey went to his (Scott’s) place and got one head of cattle. Objection was also made to the following question propounded to said witness Oscar Scott:

“Now, Mr. Scott, where did you — first describe the animal that Mr. Ruskey came there and got from your place.”

To which question Mr. Scott answered:

“A red heifer yearling, and I believe it had a little white on its face.”

This testimony was objected to on the grounds that the same was irrelevant to any issue in the case, and was not admissible because such remarks and such evidence were not made in the presence and hearing oí the appellant, and that the appellant was not hound by any act or conversation that the witness Scott had with Willie Ruskey or any other person not within the presence and hearing of the appellant. We are unable to agree with the contention of appellant, because we find in the record where witness Scott had testified as follows:

“I roped that animal out of Mr. Eversole’s pasture. Yes, sir; that 'is the defendant’s pasture. I believe that it was about May 30th that I got her out of his pasture. This heifer had a W drawknife brand on her. That is Willie Ruskey’s brand. She also had an ‘OE’ brand on her. That is Eversole’s brand — this defendant’s.”

The testimony of the witness Oscar Scott complained of in this bill was clearly admissible as tending to connect the appellant with tlie cow belonging'to the witness Willie Rus-key. We are unable to see in what way this testimony worked any injury on the appellant.

The appellant, by bill of exception, complains of the action of the trial court in sustaining the state’s objection to a question propounded by the appellant to the prosecuting witness Howard Smith, as follows:

“How many times have you been in jail before you came to Houston?”

The rule is that a witness may be impeached by showing he has. been legally charged or convicted of an offense of the grade of felony or some offense involving moral turpitude. The mere fact that he had been in jail would not in any way tend to show that he had been convicted or charged with a felony or any offense involving moral turpitude. The court was clearly right in sustaining the state’s objection.

There being no errors in the record, the judgment of the trial court is affirmed.

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.

LATTIMORE, J.

Appellant complains of our opinion on this rehearing solely because we upheld the action of the lower court in refusing his application for a continuance. He cites the case of Roquemore v. State, 54 Tex. Cr. R. 592, 114 S. W. 140. We perceive no contradiction at all between the holding in the Roquemore Case and the instant case. Appellant asked for a continuance because of the absence of certain witnesses. The continuance was refused. The motion for new trial was based in part on the refusal of the continuance. The motion for new trial was refused. This was complained of as error. In order to determine the question as to whether it was error, we look to the record. There is nothing in the record leading us to believe that the witnesses named in the application for continuance were present when he says they were, or that they would have given the testimony stated by appellant as expected of them. In such case the trial judge has discretion, and unless there be something in the record to lead us to believe that his refusal of the motion for new trial was an abuse of that discretion, we will uphold his action.

Believing the decision announced in ‘ our original opinion correct, the motion for rehearing is overruled. 
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