
    PRUITT v. STATE.
    (No. 8442.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Criminal law <@=>595(10) — Application for continuance for absent witness held lacking in merit.
    Where absent witness B. was indicted for same offense, and under Code Cr. Proe. 1911, art. 791, and Pen. Code 1911, art. 91, was not competent witness for defendant, and other testimony as to admission of B. that he alone committed the offense was hearsay, there was no merit to application for continuance.
    2. Criminal law <@=51166(9) — Ordinarily reversal not justified for procurement of testimony merely impeaching.
    Ordinarily a reversal is not justified for procurement of testimony which is merely impeaching.
    3. Witnesses <§=>361 (I)— State held properly permitted to prove general reputation for truth and veracity of its witness.
    Where, on cross-examination of state’s nonresident witness, his veracity was attacked by showing he was under indictment, and that he was in state’s employ with hope of immunity, it was not error to permit proof of his general reputation for trtith and veracity.
    4. Witnesses <@=5361 (2) — Evidence of sheriff of adjoining county as to general reputation of state’s witness for truth and veracity held without error.
    Where sheriff of adjoining county was offered as witness as to general reputation of witness W. for truth and veracity, and on cross-examination it was developed that W. was charged with liquor violations, and good judgment and faith of sheriff in employing W. was challenged in receiving testimony of sheriff, giving reasons for employing W. to suppress liquor traffic, stating that violations in county of original venue were' eyesore to adjoining county, there was no error.
    5. Criminal law <@=5665(7) — Exclusion of evidence of persons present, but not under rule, held not breach of discretion.
    In view of Code Cr. Proc. 1911, art. 719, where witnesses were placed under rule, there was no abuse of discretion by trial judge in refusing to receive from persons present and who were not under rule testimony favorable to defendant’s reputation.
    Appeal from District Court, Bosque County; Irwin T. Ward, Judge.
    J. C. Pruitt was convicted of unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Levi Herring, of Fairfield, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful manufacturé of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years. The case originated in Somervell county and the venue was changed to Bosque county.

According to the state’s testimony coming from the witness Diclr Watson and the admissions of 'the appellant which came from other state’s witnesses, he was engaged with one Howard Brawley in manufacturing intoxicating liquor. The manufacture of the liquor by Brawley and the appellant’s presence at the still were conceded facts coming from both the state and the appellant.

According to the appellant, however, he was present at the invitation of Watson merely for the purpose of drinking some whisky, took no part in the offense, and had no interest in the equipment or product. The flight of the appellant was proved by the state and explained by him.

The indictment was returned in Somervell county on September 10th. The venue was changed to Bosque county on the 16th of September. On the 18th of that month subpoena was issued for Howard Brawley and several other witnesses residing in Somervell county, and on the 22d of September subpoena was issued for McCabe, who resided in Dallas county. These witnesses were not present; nor was there any return on the processes or any further action shown to have been taken in procuring the attendance of the witnesses. This court would not feel warranted in holding that the diligence was such as would meet the demands of the law. Particularly is this true with reference to the witness McCabe. After the time that the appellant was indicted and arrested, eight days elapsed before any application was made for process, and in the ease of McCabe twelve days had elapsed. The application, however, is lacking in merit in other particulars when viewed in the light of the evidence heard upon the trial and upon the motion for new trial.

The absent witness Brawley was indicted for the same offense, and under the statute was not a competent witness for the appellant. See article 791, C. O. P., and art. 91, P. C. According to the application, several of the absent witnesses would have testified to the admission of Brawley that he alone had committed the offense. The testimony of these witnesses upon this subject would not have been admissible for the reason that it was hearsay. See Bowen v. State, 3 Tex. App. 617; Greenwood v. State, 84 Tex. Cr. R. 549, 208 S. W. 662, and eases cited; also White v. State, 86 Tex. Cr. R. 420, 217 S. W. 389; Scales v. State, 86 Tex. Cr. R. 433, 217 S. W. 149; McWhorter v. United States (C. C. A.) 281 F. 121.

According to the application, McCabe would have testified to a conversation with the witness Watson tending to show animus. Subject to the laying of a proper predicate this testimony would have been admissible for the purpose of impeachment and for such purpose alone. Ordinarily, a reversal is not justified for the procurement of testimony which is merely impeaching. Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184, and other cases cited in Branch’s Ann. Tex. P. C. § 324. The present record presents no .exception to the rule.

On cross-examination of the witness Watson his veracity was attacked by showing that he was under indictment for several offenses; that he was in the employ of the state with the hope of leniency or immunity. 1-Ie was a nonresident of the county in which the trial took place, and a stranger therein. Under these circumstances we do not under-. stand that the rules of evidence were transgressed in permitting the state to prove his general reputation for truth and veracity. Harris v. State, 49 Tex. Cr. R. 338, 94 S. W. 227; Goode v. State, 57 Tex. Cr. R. 222, 123 S. W. 597; Coombes v. State, 17 Tex. App. 264; Farmer v. State, 35 Tex. Cr. R. 270, 33 S. W. 232; Branch’s Ann. Tex. P. C. § 184, subds. 4, 6.

In bill of exceptions No. 13 complaint is made of the introduction in evidence of a statement by the witness Earned giving his reasons for employing Watson to aid the state in suppressing violations of the law against the liquor 'traffic. He stated to the jury that one of the reasons for the employment of Watson was that violations of the liquor law in Somervell county had become an eyesore to the adjoining county of Hood. This bill gives none of the surrounding facts such as would enable this court to appraise its merits. However, looking to the statement of facts, it appears that Earned, sheriff of Hood county, was introduced by the state to prove the general reputation of the witness Watson for truth and veracity, and that, on cross-examination, the appellant developed in great detail the knowledge of the witness of the fact that Watson was charged with violations of the law, and asked many insinuating questions tending to challenge the good judgment and good faith of the witness in the selection of Watson. As stated above, the bill fails to show error in receiving the testimony of the sheriff complained of, and the statement of facts, as we have examined it, indicates that in receiving the testimony, no error was. committed.

The witnesses having been placed under the rule at the beginning of the trial, the bills of exception do not show an abuse of the discretion by the trial judge in refusing to receive from persons who were present and'who were not put under the rule testimony favorable to the reputation of the appellant as a law-abiding citizen. In enforcing or relaxing it the trial court had a judicial discretion, the exercise of which will not be reviewed on appeal in the absence of a showing of its abuse. The present record does not indicate that the action of the court was arbitrary or captious. See C. C. P. art. 719; also Miller v. State, 36 Tex. Cr. R. 47, 35 S. W. 391; Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Vernon’s Tex. Crim. Stat. vol. 2, p. 399; Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 687; Fitzgerald v. State, 82 Tex. Cr. R. 130, 198 S. W. 315; Shamblin v. State, 88 Tex. Cr. R. 589, 228 S. W. 241; Scoggins v. State, 84 Tex. Cr. R. 519, 208 S. W. 930.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for rehearing appellant strongly urges that the argument of the special prosecuting attorney appointed by the Governor was erroneous. We have carefully examined same and believe it to be but a plea made by said prosecutor for the observance of the law and the punishment of the appellant by more than a minimum penalty for what was deemed a flagrant and co; tinued defiance of the law in question. The argument contains no statement of extraneous facts and no personal abuse of the accused, and i$ not deemed by us to contain any reversible error.

The motion for rehearing will be overruled. 
      <g£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     