
    ROSEBOROUGH v. STATE.
    (No. 10955.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    Rehearing Denied Jan. 25,, 1928.
    1. Criminal law <@=351 (3)— Docket entries showing defendant’s absence from court on original trial date and bond' forfeiture held admissible to show flight.
    In prosecution for robbery with firearms, entries on the criminal docket showing that on the day originally set for trial the defendant was not in court, his bond was forfeited, alias capias was ordered issued, and the case was reset for hearing held admissible for purpose of showing defendant’s flight.
    2. Criminal law <@=351 (3) — That defendant was arrested 500 miles from county where robbery was committed and was told that he was wanted for bond forfeiture held admissible to show flight.
    In prosecution for robbery with firearms, evidence that the defendant was arrested 500 miles from the cáunty where the robbery was committed and was told by the officer that he was wanted for forfeiting, his bond held admissible to show defendant’s flight.
    3. Criminal law <@=419, 420(10) — Alibi testimony of what another told witness at hour robbery was taking place as to defendant’s being in house held inadmissible as hearsay.
    In prosecution for robbery with firearms, testimony of a man as to what a woman had told him at the time that the robbery was alleged to have taken place, relative to the defendant’s' then being in a room in the house
    
      where such people were conversing, offered as alibi testimony, held inadmissible as hearsay.
    4. Witnesses <§=>344(2) — To discredit witness, she could be questioned as to whether she had children and was unmarried.
    For the purpose of discrediting a witness for defendant in robbery case, she could be questioned as to whether she had children and was unmarried.
    On Motion for Rehearing.
    5. Witnesses <§=>414(2) — Proof of prior similar statements of witness is admissible only when impeachment by proof of prior contradictory statements is attempted.
    Proof of prior statements similar to testimony given by a witness is admissible only when witness has been sought to be impeached by proof of prior contradictory statements made by the witness.
    6. Criminal law <§=»l 119(2) — Where in neither bill of exceptions nor record was it asserted witness had never been married, permitting question on cross-examination whether she had children and was unmarried held not error.
    That, for impeachment purposes, court permitted the state to ask a defense witness on cross-examination whether she had children and was unmarried held not error, where in neither the bill of exceptions nor anywhere in the record was it asserted that the witness had never been married.
    7. Criminal law <§=>l 111 (I) — Court of Criminal Appeals must take record as it is made in trial court.
    The Court of Criminal Appeals must take the record as it is made in the trial court and pass upon the questions raised in the light of what appears in the record.
    8. Witnesses <§=>349 — It having been shown, without objection, that witness was common prostitute, Whether she had children and was unmarried held proper discrediting question on cross-examination.
    Where it had been brought out, without objection, in the trial that a witness for the defense was a common prostitute, permitting question on cross-examination to discredit her testimony, whether she had .children and was unmarried held not error, since she could not be injured thereby after it had been shown that she was a prostitute.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Bully Roseborough was convicted of robbery with firearms, and he appeals.
    Affirmed.
    S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Jack Varner, of Nacogdoches, and Sam D. Stinson, State’s Atty., and Robt.' M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted for the offense of robbery with firearms, and his punishment assessed at fifteen years in the penitentiary.

Appellant filed a number of exceptions to the court’s charge, which we will not discuss for the reason that we have examined the charge and find same is not subject to any-of said exceptions.

We find for our consideration three bills of exception. Bill of exception No. 1 complains that the state was permitted to introduce in evidence entries of the case on the criminal docket, to wit:

“3/15/27. State ready, defendant not here, bond forfeited, and alias capias ordered issued; case reset for Saturday 9 a. m.”

Appellant objected to this for the reason that saíne was prejudicial, improper, and hearsay, could serve no purpose whatsoever, and was not a proper method of introducing the evidence attempted to be shown, as flight was evidently intended to be shown by said evidence. We are unable to agree with appellant’s contention. The entries were admissible for the purpose of showing flight on the part of appellant. If appellant had any explanation to make, he was at liberty to testify. The record shows that appellant was arrested between 400 and 500 miles from the county in which the alleged offense was committed and was told by the officer that he was wanted for forfeiting his bond. This testimony was not objected to and was clearly admissible as tending to show appellant’s flight, and the introduction of the entries made on the docket carried no probative force that would in any way injure appellant.

Bill of exception No. 2 complains of the action of the court in sustaining the state’s objection to the following question propounded to the witness Fred Ourl on direct examination :

“You do know the night that you were there with Beady, you asked her about Bully’s being in the room because of something about the room rent being due?”

The bill shows that the witness, if permitted, would have answered as follows:

“Yes; I know about Beady telling me that Bully was there in the room, and that she was going to make him move if he did not pay his room rent, and it was about 8:30 or 9 o’clock on the night of Mr. Bray’s robbery.”

This evidence was offered by appellant for the purpose of establishing or assisting in establishing the appellant’s alibi, and to show that at the time the alleged offense was. supposed to have been committed appellant was in the room of. Beady, 1½ miles from the scene of the robbery, and to show Beady Fear’s statement was true about appellant being there on the night of the robbery, and for the further purpose of bolstering and corroborating the testimony of the witness Beady Pears, who was assailed by the state as being a common prostitute and the mother of illegitimate children. We note the bill does not state any grounds of objection, but it does state that it was offered as tending to establish appellant’s alibi. We are not in 'accord with appellant’s contention. Any statement.made by Beady Pears to the witness Pred Curl would be hearsay and not admissible.

Bill of exception No. 4 complains that while the witness Beady Fears was testifying on cross-examination the learned trial judge, over the objection of appellant, permitted the state to propound the following question, to wit:

“I will ask you if you haven’t got some children now, and that you are unmarried?”

The witness was permitted, over timely objections made by the appellant, to answer as follows: “Tes, sir.” We are unable to agree with appellant’s contention. This bill, under the rule laid down in Mobley v. State, 89 Tex. Cr. R. 646, 232 S. W. 531, and Yeager v.. State, 96 Tex. Cr. R. 124, 256 S. W. 914, presents no error.

The facts are amply sufficient to support the verdict. The judgment of the trial court is affirmed.

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

On Motion for Rehearing.

LATTIMORB, J.

Appellant complains of our disposition of his contentions. It is first insisted that we were wrong in saying that no error was committed by the trial court in rejecting the testimony of Pred Curl to the effect that appellant’s witness to an alibi, Beady Pears, told him, Curl, on the night of the alleged robbery that appellant was there and in his room. His contention is based on the idea that Beady Pears had been impeached, and that he was therefore entitled to support or corroborate by proof the fact of her having made this statement. As we understand the record, no attempt was made by the state to impeach Beady Pears by proof of statements made by her contradictory of her testimony as given upon this trial. It is only when this character of impeachment is attempted that we have held it permissible to sustain the witness by proof of prior statements similar to the testimony given. We are not aware of any decisions holding where impeachment is attempted by proof of conviction for felonies, or by proof of the witness having been charged with or convicted of offenses involving moral turpitude, that such impeached witness can be sustained by proof of statements of similar import to the testimony given by said witness. No such authorities are cited by appellant in his motion.

It is further contended that we should have held it erroneous for the state to ask Beady Pears, appellant’s witness to an alibi, as stated in the original opinion, in reference to her having children and being then unmarried. Por two additional reasons appellant’s position is without merit. The question complained of was if witness Pears had not some children now, and if she was at that time unmarried. Neither in the bill of exceptions, nor anywhere in the record, is it asserted that Beady Pears had never been married. That a woman has children and that she is at the time unmarried or without a husband does not even suggest that she may not have been married, and that she may not be a widow.

This court is compelled to take the record as it is made in the trial court and pass upon the questions raised in the light of what appears in the record.. The other reason why no reversible error was committed in this testimony is that it appears from the statement of facts that Beady Pears was asked if she had not been prosecuted, convicted, and paid a fine for being a vagrant, to wit, a common prostitute, and that she admitted that she had. Immediately after making this answer she was asked in reference to having some children and being then unmarried, as is complained of. If it be true that Beady Pears had children and had never married, the only effect of such proof would be to reflect upon her credibility as a witness, because such proof would suggest her un-chastity, and, therefore, unreliability as a witness. The greater includes the less.

It having been shown without objection that the witness was a common prostitute, it would be a stretch of the imagination to presume that harm could have resulted to appellant from allowing her to be asked if she had some children and was unmarried. We do not reverse cases upon .claims of injury unless in some way we can reasonably conclude an injury to have been jnfiieted.

Being unable to agree with appellant, the motion for rehearing will be overruled. 
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