
    FERGUSON v. STATE.
    (No. 8715.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Nov. 11, 1925.)
    1. Criminal law <@=598(2) — Subsequent application for continuance held properly refused, in view of qualification of bill by judge.
    Application for continuance held properly refused, where it was shown by judge’s qualification to bill that three of absent' witnesses were present at former trial and were not used, and where there appeared no sufficient showing of diligence as to other three witnesses.
    2. Witnesses <@=370 (6) — Facts and circumstances showing ill will of witness for.defense against deceased admissible.
    In murder prosecution, any facts and circumstances showing ill will and prejudice of witness for defense against deceased are admissible.
    3. Criminal law <@=27 — Offense classed as “felony” when punishment fixed by confinement in penitentiary.
    An offense is classed as “felony” when punishment is fixed by statute by confinement in penitentiary, even though as an alternative.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Felony.]
    4. Witnesses <@=345 (2) — Proof that defense witness pleaded guilty to possession of intoxicating liquor in federal court properly admitted.
    Admission of proof that defense witness had pleaded guilty to possession of intoxieat-ing liquor in federal court held proper; there being nothing in record showing it to be first offense, and punishment for such offense being fixed in alternative at confinement in federa! penitentiary.
    On Motion for Rehearing.
    5. Criminal law <@=614(1)— Supplemental application for continuance treated as subse>-quent application.
    Supplemental application for continuance will be treated as another application for continuance and an additional or subsequent application.
    6. Criminal law <@=6I4(3) — Supplemental ap< plication, not containing averments exempting applicant from lack of diligence, properly refused.
    Supplemental application for continuance, not containing averments exempting applicant from lack of diligence in failing to discover absence of witness in time to include him in .original application for .continuance at present trial, held properly refused.
    7. Criminal law <@= 1120(3) — Answer properly excluded, when court was not advised as to nature of answer expected.
    Sustaining objection to question cannot be held error, when court was given no knowledge as to purport of answer expected.
    8. Criminal law <@=419, 420(12) — Written document, purporting to be recommendation f.or impeached witness for accused, properly excluded.
    Exclusion of written statement by third parties, purporting to be recommendation of witness for accused in murder prosecution, who had been impeached by state, held proper as being hearsay.
    9. Criminal law <@= 1144(12) — Action of trial court presumed regular, in absence of showing to contrary.
    Rulings of trial court in reception of evidence, in absence of showing in bill to contrary, is presumed to be regular.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Scotty Ferguson was convicted of manslaughter, and he appeals.
    Affirmed.
    O. F. Watkins, of Mexia, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Limestone county of manslaughter, and his punishment fixed at 5 years in the penitentiary. This is the second appeal of this case. See 95 Tex. Cr. R. 212, 253 S. W. 290. The facts are sufficiently stated in the former opinion.

There are seven bills of exception. We are not informed, by the bill complaining of the refusal of a continuance, how many prior applications had been presented, but it is not claimed that this was a first application. The hill taken to its refusal is qualified by the trial judge, who states that three of the absent witnesses were present at a former term and were not used. There appears no sufficient showing of diligence as to the other three witnesses. Complaint is also made of the refusal of a supplemental application. This bill is also qualified by a statement that at a former trial the absent witness Allen was neither summoned nor called to appear as a witness, though a resident of the county. The facts stated as expected were necessarily known to appellant, 'and as material at said former trial as at any subsequent time. Diligence is lacking.

Any facts and circumstances showing ill will and prejudice of a. witness for the defense against the deceased are admissible. See authorities collated in section 162, Branch’s Annotated P. C.

The fourth bill of exceptions shows no error. The question therein shown to have been propounded to defense witness Carter, with reference to the action of a mass meeting of the citizens of Mexia and what they did and said relative to deceased, was not admissible, and could not rebut the inference of prejudice on the part of said witness Carter arising from other facts in evidence. The court further qualifies the bill by stating that no information was given him as to those matters set out in the bill of exceptions as the “further testimony” of said witness, had he been permitted to answer said question.

Bill of exceptions No. 6 is unintelligible. It refers to “recommendations” and “charges” and “evidence adduced on cross-examination by the state,” none of which are set out, and we have no means of knowing if the complaints be well founded.

An offense is classed as a felony in this state when punishment is fixed by statute by confinement in the penitentiary, even though as an alternative. It was not error to admit proof that a defense witness had pleaded guilty to possession of intoxicating liquor in the federal court, he having admitted on oral examination that he had been charged with said offense but claimed that it had been dismissed; there being nothing in the record showing it to be a first offense, 'and the punishment for such offense being fixed in the alternative at confinement in the federal penitentiary.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing,

MORROW, P. J.

Upon the call of his case, appellant made a motion for a continuance, which fails to show whether it was the first or subsequent application. Under the circumstances, it would be regarded as a subsequent application. After it was overruled, as shown by the original opinion, he presented what is denominated a supplemental application. This, under the law, would be treated as another application for a continuance-and an additional'or subsequent application. It was to secure the testimony of the witness Sam Allen. It is alleged that Allen was subpoenaed on the 15th day of October, 1923. He was a resident of Bimestone county, and the motion recites that the “witness is at present in the state of Indiana, which fact has just now become known to the defendant.” Why it was not previously known is not explained. The witness, according to the motion, had been city marshal of one of the towns of Limestone county. The record on the former appeal (95 Tex. Cr. R. 212, 253 S. W. 291) indicates that Allen was present but was not used as a witness. It appears from the former record that Allen was a witness to a communication of the appellant of threats against him made by the deceased. If Allen’s absence was known to the appellant, and he desired to use him as a witness, he should have been included in the application for a continuance at the present trial. If his absence from the state was unknown at that time, the subsequent application, denominated as a supplemental application, should have contained an averment exempting the appellant from a lack of diligence in failing to discover the absence of Allen. The mere statement that he had used diligence, under the circumstances detailed, is deemed inadequate. In overruling the so-called supplemental motion for a continuance, the trial court, in our opinion, did not abuse his discretion.

There is no error shown by bill No. 4, embracing a complaint with reference to the rejection of certain purported evidence to which the witness Carter would have testified, for the reason that the bill shows that the court simply sustained the objection to a question propounded, which he deemed improper, which question is not set out in the bill; the court stating that he was given no intimation and had no knowledge of what testimony the appellant expected to elicit. Certainly the court could not be held in error for sustaining objection to a question when, neither by the form of the question or by the statement of the accused or his counsel, the court was given knowledge as to the purport of the answer expected. We will add that we are unable to perceive from the bill the relevancy of the evidence that a mass meeting of citizens had requested that the deceased vacate his office. However, if admissible, the bill fails to show error for the reasons above stated.

Bill No. 5 complains that the witness Carter, on cross-examination by state’s counsel, admitted that he had been discharged as a peace officer because of charges made against him. The appellant sought to prove by him on redirect examination that he had subsequently been recommended for reinstatement in a written paper signed by tbe various persons, whom be named in tbe bill. Tbe court, in qualifying tbe bill, states that be allowed tbe proof that tbe recommendation bad been made, but excluded tbe written document. Tbe importance of tbe matter is not perceived, for tbe reason that tbe bill fails to show tbe materiality of tbe reinstatement of Carter, in that it fails to disclose that Carter gave testimony material to the appellant. Assuming that Carter was a material witness, we think no error is apparent in tbe exclusion of a written statement of third parties. Especially is this true, since tbe contents of tbe written statement is not given save that it was a recommendation of witness, purporting to bear the signature of certain named persons. As we understand the bill as qualified, that much was admitted in evidence. The recitals in tbe statement, if any, touching tbe reasons for making the recommendation, would have been hearsay. If such reasons were material or relevant, tbe person who signed tbe statement should have been called as a witness to prove them.

Bill No. 6 fails to show error in excluding the proffered testimony of E. L. Carter to tbe effect that bis retirement was occasioned by tbe condition of his health. Tbe bill is bare of tbe surrounding facts showing tbe relation of Carter or tbe relation of tbe testimony to tbe trial.

Tbe bill complaining of tbe receipt in evidence of proof that E. L. Carter bad been convicted for violation of tbe United States law against tbe unlawful possession of intoxicating liquor does not, in the opinion of tbe writer, reveal error. Tbe bill is silent touching tbe relation of Carter to tbe accused, and in that particular fails to inform this court of tbe manner in which tbe appellant would have been injured by the impeachment of Carter. Aside from that phase of tbe matter, however, it does appear that Carter was convicted of an offense which, under tbe law of tbe United States, would be a felony under some circumstances. Tbe bill, as qualified, shows that Carter bad admitted that be was under indictment for violation of tbe federal prohibition law (Comp. St. Ann. Supp. 1923, § 10138% et seq.). This seems to have been received without objection. However, as stated in tbe original opinion, the offense of which be was charged and convicted being one, which under some circumstances tbe federal law denounced as a felony, this court would not be warranted in bolding that tbe trial court was in error in receiving evidence of it for tbe purpose of impeachment, unless it be made to appear in tbe bill that the phase of tbe law with which the witness Carter was charged was a misdemeanor and not a felony. In other words, tbe familiar rule which presumes tbe regularity of tbe action of tbe trial court,- in the absence of a showing in tbe bill to tbe contrary, would prevail. See Moore v. State, 7 Tex. App. 14; Cavanar v. State (Tex. Cr. App.) 269 S. W. 1053; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654.

Tbe motion for rehearing is overruled. 
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