
    JORDAN v. STATE.
    (No. 7642.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1923.
    Rehearing Denied Nov. 28, 1923.)
    1. Indictment and information &wkey;IIO(3) — Charge of assault while unlawfully carrying prohibited weapon, in language of statute^ held sufficient.
    An indictment under "Vernon’s Ann. Pen. Code 1916, art. 1024a, substantially following its language charging accused, “while then and there unlawfully carrying on and about his person a pistol, with said pistol made an assault on” F., held sufficient to charge every ingredient of the statutory offense of assault,’ made while unlawfully carrying a prohibited weapon.
    2. Criminal Jaw <&wkey;603(3, 5) — Application for continuance not sufficient, if facts therein are mere conclusions and general averments.
    An application for continuance, based on the absence of a witness, is not sufficient, if the facts stated therein,, are mere conclusions and general averments.
    3. Criminal law <&wkey;598(2) — Accused did not show diligence in procuring absent witness.
    Where indictment was filed November 3d, case set for trial November 20th, process issued for witness November 15th, served the 18th, case postponed until December 11th, but witness was not present on November 20th, and no diligence was shown to secure his attendance, and since that time, witness was absent from the state, proper diligence to secure him was not shown.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Criminal law <&wkey;>M09l(2) — Bill of exceptions failing to show what alleged error is will not be considered.
    A bill of exceptions, failing to show what the alleged error is, presents no matter of which the Court of Criminal Appeals can take cognizance.
    5. Assault and battery <&wkey;96(8) — Evidence held to support conviction..
    In a prosecution for an assault, made while unlawfully carrying a prohibited weapon, in violation of Vernon’s Ann. Pen. Code 1916, art. 1024a, evidence 7teld not to call for a special charge, presenting the proposition of a lawful carrying of the pistol by accused.
    On Motion for Rehearing.
    6. Criminal law <&wkey;!l I i I (3) — Appellate court is bound by trial court’s qualification to a bill of exceptions accepted by accused.
    The Court of Criminal1 Appeals is bound by the trial court’s qualification to a bill of exceptions, so accepted by accused.
    7. Criminal law <&wkey;>608 — Burden of showing diligence on him who. seeks continuance.
    The burden of showing diligence is on him who seeks a continuance.
    8. Criminal law &wkey;>598(2) — Continuance for absent witness held properly refused for lack of diligence. ,
    Where accused’s witness D. was subpoenaed on November 18th, to appear on the 20th, but she did not appear, and no further process was -sought for her when the case was called on December 11th, to which the case was postponed, the prayer at that time for continuance, based on D.’s absence, was properly refused for lack of diligence.
    9. Witnesses &wkey;236(2) — Party introducing witness may show what his business is.
    That a witness in response to a question as to what his business was, testified that he was constable of his precinct, held not objectionable.
    <gds>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    W. T. Jordan was convicted of an assanlt, made while unlawfully carrying a prohibited weapon, and he appeals.
    Affirmed.
    B. Newt. Spivey; of Texarkana, for appellant.
    R. G. Storey,. Asst. Atty. Gen., for the State.
   HAWKINS, ,J.

Appellant is under con-yiction for an assault, made while unlawfully carrying a prohibited weapon, under article 1024a, P. C., with punishment assessed at a fine of $500.

Omitting the formal parts, the indictment charges that appellant:

“ * * * While then and there unlawfully parrying on and about his person a pistol, with the said pistol did in and upont E. T. Floyd make an assault and did then and there with said weapon so unlawfully carried strike, beat and bruise and wound the said E. T. Floyd. sfs * * if '

Appellant contends that under the authority of Denton v. State, 76 Tex. Cr. R. 58, 172 S. W. 796, the indictment charges no offense, and that the trial court was in error in refusing to sustain the motion to quash. ' The indictment here under consideration may be clearly distinguished from that in the Denton Case. There the allegation was only that the accused unlawfully carried a pistol, and no element of the unlawful carrying was set out in the indictment. The omission of the very words which caused the holding of the indictment in Denton’s Case bad are found in the present indictment, viz. that appellant carried “on' and about his pei’son.”

Appellant complains of the refusal of the trial court to grant a continuance on account of an absent- witness, C. M. Knight. He alleges in his application that Knight “would testify that he was present and with, the defendant at the time of the alleged assault, and that the defendant did not make an assault on E. T. Floyd with a pistol or in any manner.” It may be seriously questioned whether the application is' sufficient, in that it fails to set out specifically the facts which the absent witness would testify to, but appears to be mere conclusions and general averments, which are not sufficient. (See many authorities cited under the third paragraph of section S12, Branch’s Ann. Penal Code.) It is not necessary, however, to dispose of the matter on that ground. The court’s qualification to the bill makes it apparent that appellant was lacking in diligence in his efforts to secure the attendance of this witness. The indictment was filed on November 3d, and the case set down for trial on 'November 20th. Process was issued for this witness on the 15th day of November and served on the 18th. When the case was called1 on November 20th it was postponed until December 11th. The witness Knight was not present at the time the ease was called on November 20th, and no diligence whatever is shown to secure his attendance since that time. The proof shows that said witness is absent from the state in the oil fields in the state of Arkansas, and had been for several weeks prior to the time this case was tried.

Bills Nos. 3 and 4 present no error, and we think it unnecessary to discuss them. We are at a total loss to understand appellant’s bill of exception No. 5. It makes reference to something appellant told one Luckett, and that Duckett would have testified to certain facts. Whatever the complaint is about it occurred while Pauline Levy was being examined as a witness. So far as the record shows, Duckett was not a witness in the case at all. The bill, as we find it in the record. presents no matter of which we can take cognizance.'

The remaining bills .complain of the refusal of the court to charge with reference to appellant’s claim that he was not unlawfully carrying the pistol at the time of the alleged assault. The merit, or otherwise, of this contention, must he determined by the facts. Floyd was constable. His testimony, in substance, was that he had followed a negro whose conduct was suspicious into the vicinity where the assault was committed; that he heard some one cursing and making threats about the officers and saying to same one, “60 ahead and call the officers”; that it was dark, being about 9 o’clock at night; that the party doing the cursing was on the porch at Eva Davis’ house (it was shown that Eva Davis’ house bore the reputation of being a disorderly house, as did others in the immediate locality); .that he went to the house and found two men beside appellant there, and upon inquiring what they meant by their conduct appellant stepped back from the door with a pistol in his hand; that appellant was very drunk; that Floyd tried to get him to go away, and after some words between them one of the men with appellant held the officer’s arms while appellant struck him in the face with the pistol. The officer was supported by the testimony of Pauline Levy as to the assault, and the boisterous conduct of appellant. The blow caused considerable flow of blood. Floyd telephoned for other officers, and appellant was arrested some 30 minutes later in the house of Nezzie Baker, about two blocks from the scene of the assault. He was very drunk and cursed the arresting officer whom Nezzie Baker requested1 to get appellant out of her house.

Appellant and his witnesses denied in toto the assault. He claimed the pistol belonged to the sheriff, and that he ha,d taken it to the sheriff’s office to leave it, but, no one being there, he was taking it home, and had gone to the oil mill to see a negro, and was returning to his ear when the trouble arose. The evidence shows beyond dispute that appellant was drunk and going, from place to place in the disreputable part of the city, raising trouble and making disturbance with the unfortunate women residing there. To our minds the evidence did not raise the issue that appellant was on a bona fide jour- ' ney home with the pistol, and that no charge upon that issue was called for.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Article 1024a of our Penal Code (Vernon’s 1916), provides that, if any person shall commit- an assault with certain named weapons, lohile same are "being unlawfully carried by the person committing such assault, he shall be deemed guilty, etc. The language,of the indictment herein charges that appellant, “while then and there unlawfully carrying on and about his person a pistol, with said pistol made an assault on,” etc. The indictment is sufficient. It follows the language of the statute, and fully charges every ingredient of the offense.

Witness Davis for appellant was subposnaed on the 18th of November, to appear on the 20th of the same month. On the 20th this witness was not present as certified in the court’s explanation to the bill of exceptions presenting the complaint. The bill of exceptions was accepted by appellant with this qualification upon it, and we are bound thereby. No further process was sought for said witness. The case was postponed to December 11th. When then called, continuance was asked because of the absence of Davis, and was properly refused for lack of diligence. The burden of showing diligence is on the accused who seeks a continuance. See authorities cited under subdivision 2, art. 608, Vernon’s C. C. P.

'It is ordinarily permissible for the party’introducing a witness to show by him what his business is. That, in response to such inquiry, a state witness testified that he was constable of his precinct, would not seem to present any objectionable matter. No authorities to the contrary are cited, and none are known to us.

There seems no denial of the fact that appellant was in what was called a sporting house when the alleged assault took place, and was in another when he was arrested shortly afterward. He testified that he had also been down to an oil mill. He was admitted i¿> be very drunk. There seems no sufficient evidence to call for the giving of any of his special charges presenting the proposition of a lawful carriage of the pistol on his part.

The motion for rehearing will be overruled.  