
    (85 Tex. Cr. R. 83)
    MORSE v. STATE.
    (No. 5319.)
    (Court of Criminal Appeals of Texas.
    March 19, 1919.
    Rehearing Denied April 23, 1919.)
    1. Criminal Law <§=>598(6) — Continuance —Diligence—Application for Subpoenas.
    Failure to apply for subpoenas until the 15th of the month, where the prosecution began on the 9th, held, lack of the diligence required to warrant continuance on ground of absence of witness.
    2. Ckiminal Law <§=>598(8) — Continuance —Diligence—Attachment.
    Upon nonattendance of defendant’s subpoenaed witness, defendant’s failure to have attachment issued, under Code .Cr. Proc. 1911, art. 536, constituted lack of diligence.
    3. Criminal Law <§=>1086(4) — Appeal — Record — Absent Witness — Refusal to Continue Trial.
    Whore refusal to grant continuance upon groun.d of absence of witness is complained of, record should disclose whether or not the subpoena was returned, and, if returned, the information therein imparted should appear.
    4. Criminal Law <§=>1151 — Appeal—Discretion — Presumption — Correctness of Court’s Ruling.
    Where abuse of the discretion vested in trial court with reference to denying an application for continuance is charged, the presumption is in favor of the correctness of his ruling until its vice is affirmatively shown.
    6.Criminal Law <§=>945(1) — New Trial-Absent Witness — Probable Effect of Testimony.
    Where showing of diligence in procuring absent witness is insufficient, it is not incumbent upon court to order new trial, unless considered in connection with evidence adduced on the trial, it is reasonably probable that a result more favorable to accused would have been occasioned by the presence of the witness.
    6. Witnesses <§=>287(3) — Redirect Examination-Explanation of Cross-Examination.
    In prosecution for keeping disorderly house, defendant, after having cross-examined state’s witness as to her objection to association of her child with defendant’s child, could not complain that witness on redirect examination stated that her reason for objecting was her knowledge of defendant’s bad reputation for chastity.
    7. Witnesses <§=>287(1) — Redirect. Examination — Explanation of Cross-Examination.
    A witness, put in bad light before the jury by the development of testimony on cross-examination, may, by a' pertinent explanation on re-examination, remove the unfavorable impression.
    8. Criminal Law <§=>1169(3) — Review — Harmless Error — Admission of Evidence.
    In prosecution for keeping disorderly house, statement by witness for state that her objection to defendant’s child playing with her child was due to her knowledge of defendant’s bad reputation for chastity was harmless, where defendant had testified that she had been engaged in running an assignation house at several places and for a number of years.
    9. Criminal Law <§=>1169(9) — Review — Harmless Error — Conclusion of Witness.
    In prosecution for keeping a disorderly house, testimony that one of the girls residing with defendant was a prostitute, if objectionable as a conclusion, was not reversible error, where witness was a policewoman, with duty of looking after prostitutes, and testified that she had found the girl in bed with a man, and where defendant’s testimony showed that the girl engaged in criminal intercourse with men at her house.
    10. Criminal Law <§=>1091(4), 1170½(1) — Witness — Harmless Error — Redirect Examination — Bill of Exceptions.
    In prosecution for keeping disorderly house, where defendant, on cross-examination of a witness for the state, who had been called to testify to reputation of defendant’s house, elicited that another witness “took his name,” bill complaining of testimony on redirect examination that he had signed a petition held not to show error, where nature of petition was not shown by bill, and where it appears that witness had given no material testimony for either party.
    Appeal from Harris County Court at Law; R. M. Love, Special Judge.
    Dora Morse was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Jack Ciulla and Calvin & Ciulla, all of Houston, for appellant. . .
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Conviction was for keeping a disorderly house. An application for continuance based upon the absence of eer-.¡⅝⅛ witnesses was made.

The prosecution began on the 9th of September; the trial on the 19th of that month; all of the witnesses named in the application resided in the city of Houston, Harris county, where the trial took place. One of the witnesses, however, was temporarily in McLennan county. The subpoenas were applied for on the 15th, and issued on the 16th, day of September. No reason is stated for not applying for them at an earlier date, and this fact alone discloses an absence of the diligence required by the law. Barrett v. State, 18 Tex. App. 64; Dove v. State, 36 Tex. Cr. R. 105, 35 S. W. 648; Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 996. The sheriff of Harris county executed the process, and returned it on the same day it was issued, showing service of the witness. Their nonattendance entitled appellant to an attachment for them (C. C. P. art. 536), and diligence required its issu-anee (Hill v. State, 18 Tex. App. 065). The subpoena for King, who was in McLennan county, was sent to the sheriff of that county, by what means is not shown, and neither in the application, the bill of exceptions, nor the motion for new 'trial is it made to appear what became of the subpoena. The record should disclose whether the subpoena was returned or not, and, if returned, the information therein imparted should appear. Todd v. State, 57 Tex. Cr. R. 27, 121 S. W. 506.

Where the abuse of the discretion vested in the trial court with reference to denying an application for continuance is charged, the presumption is in favor of the correctness of his ruling until its vice is affirmatively shown by the record. Branch’s An. P. 0. p. 183, § 306, and cases listed. This court is not advised what, if any, effort appellant made to secure the service of the process at Waco, if it was not served, or what diligence he exercised to secure the attendance of the witness with other process. The affidavit of the witness King, attached to the motion for new trial, shows that he was in Waco, but does not show whether he was served with subpoena or not, nor does it explain the cause of his nonattendance. The affidavit, moreover, shows that such testimony as he would have given was cumulative, of a negative character in part, and the remainder mainly conclusions. It consists of his statement that he roomed at the house of appellant from September, 1917, until June 6, 1918, and that the appellant and the women living with her conducted themselves in an orderly manner, and he saw no lewd conduct, and that men and women did not meet there for immoral purposes.

On the trial there was direct testimony that some of the women who were inmates of the house were prostitutes, and that some made assignations there with appellanr! knowledge and received money, a part of which was paid to appellant. Whether these transactions occurred after the witness King’s departure or before is not disclosed, but that they might have occurred without his knowledge is manifest. The diligence being clearly insufficient, it was not incumbent upon the trial court to order a new trial on account of the absent testimony, unless considered in connection with the evidence adduced on the trial, it is reasonably probable that a result more favorable to the accused would have been occasioned by the presence of the witness. Oovey v. State, 23 Tex. App. 391, 5 S. W. 283; Branch’s An. P. C. p. 188, § 319, subd. 2.

A witness for the state, on cross-examination, responding to questions by appellant, admitted that she had told the five year- old child of appellant to leave her premises, and that she did not want her to associate with her little girl. The motive of the witness having been thus assailed by appellant, she is not in a position to complain that the witness on redirect examination stated that her reason for objecting to the association of the children was her knowledge of the bad reputation of appellant for chastity. There is a just rule of evidence which permits a witness, put in bad light before the jury by the development of testimony on cross-examination, by a pertinent explanation on re-examination, to remove the unfavorable impression. Wigmore on Evidence, vol. 2, § 952; Oxsheer v. State, 38 Tex. Cr. R. 505, 43 S. W. 335.

The complaint of the reference to the reputation of appellant was, by the circumstances detailed, rendered unsound, even though the reputation of appellant in the respect mentioned was not an issue, which could be raised by the state. Moreover, the appellant having testified that she had been engaged in running an assignation house at several places and for a number of years in the city of Houston, we would be inclined to hold the answer of the witness harmless, on the ground that there was other similar testimony before the jury without objection.

The bill complaining of the action of the court in permitting a witness to testify that one of the women residing with appellant was a prostitute does not disclose error justifying reversal. It was objected to as a conclusion, and, standing alone, might have been subject to that objection. The witness giving the evidence was a policewoman whose business required her to look after prostitutes, and she said she knew of her own knowledge that the girl was a prostitute, and gave facts supporting her knowledge — among others, that she was confined on the city farm; that witness went to appellant’s house after the girl, and found her in bed with a man. The appellant, testifying abóut the same girl, gave testimony showing that she, at her house, engaged in criminal intercourse with men, and further said she was diseased, stating facts from which the inference is clear that she was afflicted with a venereal disease. The girl bore the reputation of a common prostitute.

The bill complaining that a witness testified that he had signed a petition discloses no error. The petition is not described in any manner in the bill. It appears therefrom that appellant proved by the witness, on cross-examination, that a certain witness “took his name”; and the state on redirect examination proved by him that he signed a petition. He was called by the state to show the reputation of appellant’s house, but failed to qualify, and gave no material evidence, so far as we learn from the bill, for either party.

We find nothing in the record which would require or justify reversal. The judgment ⅛ affirmed. 
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