
    SHAMBLIN v. STATE.
    (No. 5876.)
    (Court of Criminal Appeals of Texas.
    March 2, 1921.)
    1. Criminal law <&wkey;>598(6) — Diligence in issuing process for witnesses inadequate to require continuance.
    Where process was not issued for witnesses until two months after indictment and arrest, and was returned not executed four months prior to trial, no sufficient diligence was shown to require the granting of a motion for continuance to secure the testimony of the witnesses, in the absence of an explanation of the delay in issuing process or the failure to renew efforts to secure the attendance of the witnesses.
    2. Criminal law <&wkey;l 153(5) — Permitting witness who remained in courtroom after rule to testify, a matter within discretion of court.
    Permitting a witness who had remained in court after the rule had been called for to testify was a -matter within the discretion of the trial court, and reversible error did not occur, unless such discretion was abused to the prejudice of the accused.
    3. Criminal law &wkey;>ll4I(2), 1144(12) — Burden on appellant to show circumstances from which abuse of discretion appears in permitting witness to testify.
    Where accused on appeal complained that court abused its discretion in permitting a witness to testify who had remained in the courtroom after the rule had been called for, the burden was on him to reveal in his bill of exceptions circumstances from which an abuse would appear; there being a presumption in favor of the correctness of the ruling of the judge.
    4. Criminal law &wkey;>448(4) — Question properly refused as calling for opinion of witness.
    In a homicide case, where witness testified that he observed killing at a distance of about 100 feet, that position of deceased when shots were fired was obscured by an intervening object, and that he did not see the actual shooting, but saw a man run across the street, court properly sustained an objection to a question whether the man that ran away was the one who did the shooting, as it called for an opinion of the witness.
    5. Witnesses <&wkey;369 — Fee paid to witness as attorney immaterial.
    In a homicide case, where a member of a law firm employed by defendant to defend him, connection being subsequently terminated, testified as an eyewitness that defendant killed deceased, court did not err in refusing to receive evidence as to how much witness had received from accused under his contract to defend him, not being relevant. ■
    6. Witnesses <&wkey;345(2) — Court erred in permitting state on cross-examination to show witness had been arrested for forgery.
    In a homicide case, court erred in permitting the state on cross-examination of defendant’s witness to show that the witness had been arrested and put under bond for the offense of forgery, where subsequent to his arrest the grand jury had adjourned without indicting him, the presumption obtaining that the information or belief upon which the complaint was made was ill founded, where the grand jury fails to indict.
    7. Witnesses &wkey;>345(2) — Misdemeanors admissible to discredit must impute moral turpitude.
    A witness may not be discredited by proof that he had been charged with misdemeanors which did not impute moral turpitude, such as drinking and exceeding the speed limit.
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    Bill Shamblin was convicted of murder, and appeals.
    Reversed and remanded.
    Marvin B. Simpson, A. L. Moore, and W. E. My res, all of Port Worth, and Burkett, Anderson & Orr, of Eastland, for áppellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Tlie judgment condemns the appellant to confinement in tlie penitentiary for a period of 15 years for tlie offense of murder.

Albert Jourdan was shot and hilled on the street at Ranger, Tex. He was an officer in plain clothes. The tragedy occurred at night. The appellant, his wife, and one John Mays were present. The state’s theory and testimony is to the effect that the appellant shot Jourdan. It is his theory that the deceased was killed by John Mays. The state’s case is supported by ample testimony; and there is evidence of eyewitnesses directly supporting the theory of the appellant.

A motion for continuance to secure the testimony of other witnesses to corroborate the appellant to the effect that he was not the assailant was made and overruled. The process was not issued for more than two months after the indictment and arrest, and was returned not executed some four months prior to the trial. No explanation of the delay in issuing process or the failure to renew efforts to secure the attendance of the witnesses is disclosed. The diligence is totally inadequate.

A witness who had remained in the courtroom after the rule had been called for was permitted to testify. The law vests in the trial judge discretion in such matters, and it is when the discretion is abused to the prejudice of the accused on trial that a reversible error occurs. Miller v. State, 36 Tex. Cr. R. 47, 35 S. W. 391; Vernon’s Texas Crim. Law, vol. 2, p. 399; Bishop v. State, 81 Tex. Cr. R. 97, 194 S. W. 389.

The burden was upon the appellant to reveal in his bill of exceptions circumstances from which an abuse of discretion would appear. This he failed to do, and the presumption in favor of the correctness of the ruling of the judge prevails.

A witness testified that he observed the tragedy at a distance of about 100 feet; that the position of the deceased at the time the shots were fifed was obscured by an intervening object; that he did not see the actual shooting, but saw 'a man run across the street. The appellant asked him whether the man that ran away was the one who did the shooting. As the matter is presented, it occurs to us that this called for the opinion of the witness, and the court was not in error in refusing to receive it. We failed to perceive upon what principle of evidence the amount of fee that the witness John Mays had received under his contract with the appellant to defend him would have become relevant. Mays was present at the homicide, and testified that the appellant was the assailant of the deceased. It was shown that Mays was an attorney, and was a member of the firm that had been employed by the appellant to defend him, but subsequently the connection of that firm with the defense was terminated; that the firm had received compensation was disclosed. He testified to nothing coming to his knowledge during his employment. If the amount of his fee was material, such is not made to appear from the record before us.

The witness Pendleton testified on behalf of the appellant to facts showing that he was an eyewitness to the homicide. His evidence goes to support the appellant’s theory that he did not shoot the deceased, but that at the time the deceased was shot the appellant had fallen, or was about to fall, in consequence of a pistol shot wound. It was the undisputed fact that the appellant bad been wounded, and on the arrival of the officers was on the street and in a practically helpless condition. The testimony of this witness was to the effect -that, while the man who had received the wound was dragging himself across the street, the other male member of the party was shooting the deceased. On cross-examination the state undertook to show that this witness had been arrested and put under bond for the offense of forgery. It was disclosed that subsequent to his arrest the grand jury had adjourned without indicting him; that he had not, at any time, been indicted. Under these circumstances the trial court was in error in refusing to sustain the appellant’s objection to the testimony showing that the witness had been arrested and put under bond for forgery. In stating this conclusion, we are but affirming the previous explicit declarations of this court.

In the ease of Wright v. State, 63 Tex. Cr. R. 436, 140 S. W. 1105, the accused sought to discredit a state’s witness by proof that a complaint had been filed against him charging a felony, and that by virtue of the complaint the officer had arrested him. It further appeared that no indictment had followed, notwithstanding the lapse of sufficient time and the meeting of grand juries in the meanwhile. The court decided that the accused was not entitled, by this means, to discredit a witness for the state. Attention was drawn to the fact that a complaint may be filed upon information and belief, that it authorizes an arrest, and that it may result in a bond binding the accused to attend and await an investigation by the grand jury, but when the grand jury fails to indict the presumption obtains that the information or belief upon which the complaint was made was ill founded. This principle was applied in behalf of the accused in the case of Sapp v. State, 80 Tex. Cr. R. 363, 190 S. W. 492. In other jurisdictions the courts have gone much further in excluding such testimony. Wigmore on Evidence, § 983; Underhill on Criminal Evidence, § 345, p. 445; Wharton’s Grim. Evidence, § 50. While the rule obtaining in our state is more liberal, it has not been extended to embrace evidence such as was used in the instant case to discredit the testimony of a witness giving important evidence in behalf of the appellant. See Barkman v. State, 52 S. W. 71; Red v. State, 39 Tex. Cr. R. 422, 46 S. W. 408; Brittain v. State, 36 Tex. Cr. R. 406, 37 S. W. 758; Ware v. State, 36 Tex. Cr. R. 597, 38 S. W. 198; Conway v. State, 33 Tex. Cr. R. 329, 26 S. W. 401. Another witness giving testimony favorable to the appellant and material in support of his defense was discredited by the testimony elicited upon his cross-examination, in which, as we understand the record, it is made to appear that he had been charged and arrested for a felony, but had never been indicted therefor, although the transaction toot place some 9 years prior to the trial. He was also discredited by proof that he had been charged with certain misdemeanors which did not impute moral turpitude, such, for example, as drinking and exceeding the speed limit. The rule touching this class of testimony, as stated by Mr. Branch in his Texas Penal Code, § 167, is as follows:

“Defendant or any other witness, if the impeaching testimony is not too remote, may be impeached by the adverse party by proving by the witness on cross-examination that he had been indicted or convicted or that he is then under indictment for a felony or for a misdemeanor imputing moral turpitude. The judgment of conviction need not be produced when the object is only to impeach and not to disqualify the witness.”

This rule, in our judgment, was, in the ease before us transgressed to the prejudice of the appellant. The evidence was undisputed that the appellant and Mays had been carousing; that they were walking upon the street, one of them displaying a pistol; that it was ¡nighttime; that the deceased approached them; that he fired and was fired upon, whether the first shot was from him or his assailant being in controversy; that the appellant was shot and seriously wounded; that Mays ran away, some evidence going to show that he threw away his pistol as he ran; and that a pistol which had been discharged was found. The state’s witnesses testified that the appellant fired the shots; the appellant’s witness testified, some of them directly, that Mays fired them, others to circumstances going to sustain that theory. It cannot be regarded as harmless or unimportant that some of these witnesses, who testified to facts exculpating the appellant, were discredited by evidence which was illegally admitted over his objections.

For this reason, we find it necessary to order that the judgment be reversed, and the cause remanded. 
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