
    GREEN v. STATE.
    (No. 11063.)
    Court of Criminal Appeals of Texas.
    Oct. 26, 1927.
    Rehearing Denied Nov. 30, 1927.
    1. Crimina! law <@=»59'5(4) — Continuance for witness in liquor case, whose testimony would not conflict with state’s evidence, held properly disallowed.
    In prosecution for sale of liquor motion for continuance because absence of witness, whose testimony, though true, would not conflict with state’s evidence going to establish guilt, held properly overruled.
    2. Criminal law <&wkey;>ll41(2) — Bill of exception to questioning witness as to complaint for violating liquor law, failing to show meeting of grand jury without indictment, did not present error.
    Bill of exception to questioning witness relative to complaint against him in justice court for violating liquor la,w, failing to show that grand jury had intervened since filing of said complaint with no indictment returned, held not to show error, since one invoking such rule has burden of showing meeting of grand jury with no indictment.
    On Motion for Rehearing.
    3. Witnesses <&wkey;345( I) — Complaint against witness charging him with offense involving moral turpitude may be shown, and adverse party has burden of showing failure to indict.
    It is proper and permissible to prove against a witness that complaint has been filed against him charging him with a felony or offense involving moral turpitude, and in such case the adverse party has the 'burden of proving that grand jury has met and failed to indict.
    Commissioners’ Decision.
    Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
    John Green was convicted for the sale of intoxicating liquor, and he appeals.
    Affirmed.
    
      O. H. Cain, of Liberty, and S. P. Hill and Puller & Puller, all of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   MARTIN, J.

Appellant] was indicted for tbe sale of intoxicating liquor in Liberty c.ounty, wbicb sale was alleged to bave occurred on tbe lOtb day of December, 1925. This indictment was returned at tbe February term, 1926, of tbe district court of Liberty county. At tbe February term, 1927, of tbe said district court, tbe defendant made wbat be denominates. a subsequent application for a continuance on account of the absence of the witnesses Lucille Harris and Mrs. Leo Green. Tbe application alleges that defendant expects to prove and can prove “that tbe defendant spent the night of December 9th at her home in Houston and left the next morning with some men to go duck bunting at some point near La Porte, returning that night with several ducks they bad killed.” Tbe state’s testimony shows tbe sale was made in Dayton, Liberty county, on December 10, 1925, about 10 o’clock in tbe morning.

Defendant’s bill of exception is qualified by tbe court, as follows:

“This case was reset two or more times at former terms of this court in order to secure the attendance of these witnesses, except the witness Mrs. Leo Green, wife of defendant, who was present during the trial of this case and did not testify.

Tbe bill nowhere shows the distance from Houston to Dayton, and in no wise negatives tbe fact that appellant could bave been at Dayton after leaving the home of tbe witness in Houston at the timp testified by state’s witness. Tbe testimony of this witness might be true and yet would not in any way conflict with the state’s evidence going to establish tbe guilt of tbe defendant. Bonners v. State (Tex. Cr. App.) 35 S. W. 650; Underwood v. State, 38 Tex. Cr. R. 196, 41 S. W. 618. Besides this, tbe bill does not show such an abuse of discretion as tbe law has lodged with tbe court in matters of this kind. Tbe continuance was properly overruled.

By bill of exception No. 1 it is shown that while tbe witness' Remke was on tbe stand, be was asked if there bad not been a complaint filed against him in tbe justice court of Liberty county charging him with a violation of tbe liquor law. This bill does not show whose witness Remke was, nor such circumstances and facts as would show injury to appellant, nor does tbe bill show that a grand jury bad intervened since tbe filing of said complaint with no indictment returned. This bill shows no error.

Tbe judgment of tbe trial court is affirmed.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by the Judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

LATTIMORE, J.

In tbe light of appellant’s motion, tbe propositions advanced therein have been again examined and considered. We can add little to wbat was said in tbe original opinion. Tbe record makes it plain that tbe motion for continuance is not good.. There would not appear any ground for believing that, bad tbe absent testimony been before the jury, a different result would bave been 'obtained. Nothing indicates an abuse of the discretion of tbe court in overruling the application. One who seeks to invoke tbe rule against thel use of testimony reflecting upon a witness’ credibility, that such witness has bad a complaint filed against him charging him with a felony, must assume tbe burden of showing that the grand jury has met since tbe filing of tbe complaint and that no indictment was returned. This burden appellant did not discharge. It is proper and permissible to prove against a witness that a complaint has been filed against him charging him with a felony or an offense involving moral turpitude. In tbe absence of some showing in the bill of some circumstance requiring tbe rejection of such testimony, we assume that tbe action of tbe trial court was correct.

Tbe motion for rehearing is overruled. 
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