
    WALKER v. STATE.
    (No. 9732.)
    (Court of Criminal Appeals of Texas.
    June 25, 1926.
    Rehearing Denied Nov. 3, 1926.)
    1. Criminal law <&wkey;598(6).
    AVhere indictment was returned in October, 1923, and process issued in May, 1925, without justifying or excusing failure to ask for process earlier, sufficient diligence is not shown to warrant continuance.
    2. Criminal law <&wkey;608.
    Party asking for continuance has burden of affirmatively showing diligence.
    3. Criminal law <@=>595(10) — Continuance for expected testimony that would have been inadmissible and for testimony for Which no basis was laid at trial held properly refused.
    Refusal of continuance for expected testimony that would have been inadmissible and for testimony of a conversation with prosecu-trix, admissible only in event of her denial thereof, but about which she was not questioned at trial, held not error.
    4. Criminal law <&wkey;309.
    There is no legal presumption that prose-cutrix, if questioned as to conversation, would have denied it, if true.
    5. Criminal law <@=>l 1,58(2).
    Application for continuance will be passed on by Court of Criminal Appeals, in light of evidence adduced at trial.
    6. Criminal law <&wkey;l 120(3) — Bill of exceptions, complaining that, if defendant had been permitted, he would have shown prosecu-trix’s bad character, presents nothing for review as failing to set out questions or objections 'made.
    Bill of exceptions, complaining that defendant charged with robbery undertook to prove, on cross-examination of prosecutrix, that she was requested to leave co-operative home because of her genera] bad character, and that, if defendant had been permitted, he 'would have shown such facts, presents nothing, tangible for review as failing to set out any questions or objections made.
    7. Criminal law <@=>1119(2) — Bill of exceptions setting out question asked of defendant’s witness on cross-examination, but not showing its materiality or injury and not setting out answer, is not in proper form for review.
    Bill of exceptions, complaining of state’s cross-examination of defense witness as to whether he had seen defendant at place of assault with “those other girls,” without stating materiality of inquiry or how question or its answer could injure defendant and not setting out witness’ answer, is not in proper'form for review.
    8. Robbery <&wkey;23(2).
    In prosecution for robbery after an alleged assault on prosecutrix, testimony that on evening after assault prosecutrix was nervous, crying, and all worked up was admissible.
    9. Robbery <@=>24(l).
    Testimony that defendant, on pretext of employing prosecutrix, assaulted her and with use of a pistol forcibly took her money and rings, held sufficient to support conviction for robbery.
    On Motion for Rehearing.
    10. Criminal law <&wkey;6!4(2).
    Second application for continuance for absence of witness whose testimony was impeaching and cumulative held properly refused.
    11. Witnesses <@=344(2) — Evidence to show bad moral character of prosecutrix by specific acts of herself and others, and general bad character for associating with others whose characters were bad, held properly excluded.
    In prosecution for robbery, evidence to show bad moral character of prosecutrix by specific acts of herself and others, and that her general reputation was bad for associating with others whose characters were bad, held properly excluded.
    12. Witnesses <&wkey;344(2).
    Specific acts of immoral character may not be shown as affecting credibility of female witness.
    13. Witnesses <@=>340(3).
    Witness’ veracity may not be impeached by showing her general reputation for chastity to be bad.
    14. Witnesses &wkey;>344(2), 345(2) — Witness may be impeached by showing conviction of theft, but not by proof of general reputation as thief or associate of thieves.
    Witness may be impeached by showing conviction for theft, but not by proof that his general reputation is that of a thief, nor by proof that he is generally reputed to associate with thieves, nor that general reputation of associates is that of thieves.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Frank Walker was convicted of robbery, and he appeals.
    Affirmed.
    
      E. O. Puller, of Houston, for appellant.
    Horace Soule, Or. Dist. Atty., and J. D. Du Mars, Jr., Asst. Dist. Atty., both of Houston, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   DATTIMORE, J.

Prom conviction "in the criminal district court of Harris county of the offense of robbery, with punishment fixed at five years in the penitentiary, this appeal is taken. Por opinion upon the former appeal of this same case, see Walker v. State, 99 Tex. Cr. R. 634, 271 S. W. 384.

Bill of exception No. 1 complains of the refusal of a continuance. When an indictment is returned in October, 1923, and there is no showing of the issuance of process until May, 1925, and no reason set out justifying or excusing the failure to ask for process earlier, sufficient diligence is not shown. The burden is put upon one asking for a continuance to affirmatively show diligence. We further observe that the testimony expected from witness Young appears inadmissible, and that the conversation had with prosecu-trix, Ruby Middleton, which appellant says he could prove by the witness Harrington, would be only admissible in the event of a denial thereof by prosecutrix. Reference to the statement of facts discloses that she was not asked about this conversation on the trial. There is no legal presumption that had she been asked, she would have denied it, if true, We pass on applications for continuance in the light of the evidence adduced on the trial. Branch’s Annotated P. C. § 305. The bill presents no error.

Bills Nos. 2, 3, and 4 are not in such form as to call for a ruling from this court. As illustrative, we quote from bill No. 3 as follows: ,

“The defendant undertook to prove, on cross-examination of prosecuting witness, Ruby Middleton, that she had remained at the Young AYomen’s Co-operative Home only a short time after going there to live, and that she was requested to leave said home because of her general bad character as a common prostitute; and, that if defendant had been permitted by the court he would have followed this line of evidence and would have shown that prosecuting witness, Ruby Middleton, had been driven 'from place to place prior to, at the time of, 'and since the alleged offense and had been required to leave the various places where she had engaged lodging because of the general bad reputation and conduct of the said Ruby Middleton,” etc.

Such a bill brings before us nothing tangible. How did appellant “undertake to prove, on cross-examination of prosecuting witness, that she had remained at the Young Women’s Co-operative Home only a short time after going there to live, and that she was requested to leave said home because of her general bad character?” etc. Were not questions asked prosecutrix ' on cross-examination? l£ so, what were they? What was the objection to the question? Was it to the form or substance of the same? We are not informed by the bill; we do not know, and hence cannot say. In this connection we might observe, in regard to the matters contained in each of said bills, that there was no testimony offered by appellant from any witness that prosecutrix was a common prostitute, or that she had ever been charged or convicted of an offense involving such character. Chase v. State, 97 Tex. Cr. R. 349, 261 S. W. 574. This court has held that bad reputation for chastity cannot be proved for the purpose of affecting the truthfulness of a witness. McCray v. State, 38 Tex. Cr. R. 611, 44 S. W. 170; Hall v. State, 43 Tex. Cr. R. 489, 66 S. W. 783; Ellis v. State, 56 Tex. Cr. R. 15, 117 S. W. 978, 133 Am. St. Rep. 953.

Bill No. 5 presents complaint that the state, on cross-examination of defense witness Oastelo, asked him if he had seen appellant at the place of the alleged assault with “those other girls.” No facts are set out in the bill from which we could derive information as to the materiality of such an inquiry. Who “those other girls” might be or how said question or its answer could injure appellant nowhere appears; nor does the bill set out the answer of the witness.

Testimony that on the evening of the alleged assault, and after same occurred, pros-ecutrix was nervous, crying, and all worked-up was admissible. Branch’s Annotated P. C. § 1784, collates authorities.

The testimony seems sufficient to support the finding of the jury. Prosecutrix testified that, on the pretense of wanting to employ her at his home, appellant asked her out in the woods where he assaulted her and by means of the assault and the use of a pistol forcibly took from her money and rings.

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

MORROW. P. J.

I doubt the correctness of the conclusion reached, but will not write upon the subject.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that we were in error in disposing of his bill complaining of the refusal of continuance. It was his second application. As to witness Young, the application shows entire lack of diligence. We must pass upon these matters from what we find alleged in the request for continuance, in the light of the facts proved. Upon its face, the application shows insufficient diligence in securing process for the witness Mrs. Harrington, but it had been served, and in response she was in court on May 18th. The case was not tried at that time. Why it was not the application fails to show. When the ease was called for trial on June 1st, this witness did not appear. Conceding diligence as to her, the testimony expected was impeaching as to one feature of it and cumulative as to another. Under such circumstances, the trial court committed no error in refusing the continuance.

We have again examined bills of exception 2, 3, and 4, in view of appellant’s insistence that they were incorrectly disposed of. The bills are very general, as pointed out in our original opinion, and perhaps should not be considered on that account, but, com struing them most liberally, we nevertheless are of opinion they do not present error. Ruby Middleton was the party alleged to have been robbed. She testified that appellant not only robbed her, but forcibly raped her. Appellant did not testify and his chief defense centered around an attack upon the prosecuting witness. The bills disclose that appellant was seeking to show her bad moral character by specific acts of herself and others, and that her general reputation was bad for associating with those whose characters were also bad. In McIntosh v. State, 91 Tex. Cr. R. 392, 239 S. W. 622, we held that a female witness might be impeached by asking her if she had not been convicted of being a common prostitute because this offense involved moral turpitude. The authorities are cited in the McIntosh opinion. See, also, Steele v. State, 94 Tex. Cr. R. 345, 251 S. W. 222.

The trial judge, in qualifying one of the bills in question, specifically says no such effort was made to impeach the prosecuting witness. Specific acts of an immoral character may not be shown as affecting the credibility of a female witness. Authorities are collated in Hays v. State, 90 Tex. Cr. R. 355, 234 S. W. 898. Neither may a witness’ veracity be impeached by showing her general reputation for chastity to be bad. For authorities collated, also, see Hays v. State, supra. A witness may be impeached by showing that he has been convicted in the courts of theft, but not by proof that his general reputation is that of a-thief, nor by proof that he is generally reputed to associate with thieves, nor that the general reputation of his assoei-ates is that of thieves. In effect, this is what appellant undertook to do by the evidence rejected as shown by said Bills 2, 3, and 4. We think it was properly excluded.

The motion for rehearing is overruled. 
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