
    HOWELL v. STATE.
    (No. 7779.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.
    Rehearing Denied Oct. 31, 1923.)
    1. Criminal law <&wkey; 1182-Conviction based on sufficient indictment affirmed in absence of bill of exceptions or apparent error.
    Where bills of exception are filed too late to be considered, and the indictment sufficiently charges the offense, ‘ conviction will be affirmed in the absence of apparent reversible error.
    On Motion for Behearing.' ,;
    2. Criminal iaw <&wkey;603(l I) — Denial of motion for continuance held not abuse of discretion.
    An averment in a motion for a continuance that an absent witness for whom a subpoena had been returned not executed three weeks before trial, had departed suddenly for another state, and that his stay was temporary, held
    
    <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not to show a sufficient excuse for failure to have issued additional process, or show an abuse of discretion by the court in denial of the motion.
    3. Jury <&wkey;95—Jurors held1 not disqualified because they sat in previous cases wherein ac.cused was acquitted of similar offense.
    Jurors, in a prosecution for the sale of intoxicating liquor, held not disqualified by reason of the fact that they also sat in two previous cases against accused for similar offense, wherein he was acquitted.
    4. Criminal law <&wkey;I144(12) — Testimony brought out on re-examination assumed to have been proper because of cross-examination.
    In the absence of any statement .of facts on appeal, or showing as to surrounding circumstances, testimony of a character witness oh re-examination that accused had been pointed out to him as a bootlegger, was not legitimate as original testimony, but it must be assumed to have been rendered competent by the cross-examination made by accused.
    <§—¡For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Ennis Howell was convicted of selling Intoxicating liquor, and he appeals.
    Affirmed.
    Clyde P. Winn, of Waxahachie, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   EATTIMORE, J.

Appellant was convicted in the district court of Ellis county of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The record is before us without statement of facts. The trial term of the court below adjourned December 2, 1922, an order having been entered granting appellant 60 days in which tó file bills of exception and statement of facts. The bills of exception were filed on March 3, 1923. There was no order extending the time. The bills of exception were filed too late to be considered; by us.

The indictment appearing to sufficiently charge the offense, and there béing no error apparent in the record, an affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

The sickness of the appellant’s attorney is relied upon to excuse the tardy filing of the bills of exceptions and the statement of facts.

Appellant was indicted on the 19th of October, and tried on the 21st of November. The subpoena for an absent witness residing in the county was returned not executed on October 30th. Excusing the failure to issue additional process, the motion avers that the witness had recently gone to Oklahoma, that his departure was sudden, and that his absence was temporary. In overruling the motion, the trial judge did not abuse his discretion. Vernon’s Tex. Grim. Stat. vol. 2, art. 608, page 306, note 4, and cases cited.

There were three cases charging appellant with the sale of intoxicating liquor. One charged the sale to Childress, another to Howard, and another to Williams. The jury was impaneled in each of the other cases. The state failing to make out a case, a verdict of not guilty was instructed. In the present case, the court was requested to eliminate from the panel the 12 men who had sat as jurors in the other cases. The 12 men were not disqualified by reason of the facts stated. Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734; Edgar v. State, 59 Tex. Cr. R. 255, 127 S. W. 1053; Hardgraves v. State, 61 Tex. Cr. R. 422, 135 S. W. 144; Branch’s Ann. Tex. Penal Code, p. 284.

The witness Parker, was introduced to prove the general reputation of the appellant ; that the general reputation of the appellant was bad. However, in what particular, the bill does not say. The witness was examined, cross-examined and re-examined. Upon his re-examination he stated that the appellant had been pointed out to him as a bootlegger. Unless this inquiry introduced or rendered competent by the examination made by the appellant, it was improper. It is not legitimate to prove as original testimony that one accused of selling whisky bears the reputation of a bootlegger. However, the bill does not show the surrounding circumstances, .and we must' therefore assume that the learned trial judge would not have permitted the testimony had it not been because of some action on the part of the appellant or his counsel which made it excusable. In the absence of a statement of facts, the difficulty of appraising any of the bills of exception presented in this record is practically) insurmountable. We are not sure that the bills should be considered, but they reveal no reversible error.

The motion is overruled.  