
    MARSHALL v. STATE.
    (No. 4867.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Cbiminal Law <@=3603(2) — Continuance-Absence of Witnesses — Materiality of Testimony.
    In a prosecution for robbery, defendant’s application for continuance to secure the testimony of two witnesses was properly denied for failure to show materiality of their testimony, which wás that the injured party had exhibited about 80 cents before the robbery, and had said that he had no more, and that he was trying to borrow money from some unknown person during the evening he was with defendant.
    2. Criminal Law <@=3598(6) — Continuance-Absence of Witnesses — Failure to Show Diligence.
    The discretion of the trial judge in overruling defendant’s application for continuance on account of the absence of witnesses was not abused where the trial took place October 1st, and subpoenas for the absent witnesses were not issued until the 29th of September, no reason being shown in the application for failure to issue them at an earlier date_, and no allegation being made as to what, if any, effort was made to secure their attendance during progress of trial.
    3. Criminal Law <@=3603(11) — Continuance —Absence of Witness — Showing What Was Done with Process.
    An application for a continuance must show what was done with the process for the absent witness, whether it was served, and when it was returned.
    
      4. Criminal Law <®=»1091(3)—Appeal—Rec-ord— Prejudicial Error.
    If a witness was incompetent as having been in the penitentiary, failure of defendant’s bill of exceptions to show that the witness gave material testimony against defendant leaves the record in a condition rendering it impossible for the Court of Criminal Appeals to determine that the supposed error was harmful.
    5. Witnesses <S=79(1)—Disqualification—
    Conviction oe Crime—Waiver oe Objection.
    Whore the right is asserted in a timely way, the party offering a witness, claimed to be disqualified as having been in the penitentiary, may demand that his disqualification be proved by the record of the judgment of conviction, but the right is waived by failing to assert it at the proper time.
    Appeal from Criminal District Court; Dallas County; C. A. Pippen, Judge.
    Carl Marshall was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from a judgment condemning appellant to five years’ confinement in the state penitentiary for the offense of robbery.

The evidence, while conflicting, is sufficient to support the verdict. The injured party, 'Lambert, appellant, and a witness named Turner had been drinking together on the night in question in the city of Dallas. Lambert and Turner testified that appellant knocked or pushed Lambert down and took several dollars in money off from his person. Another witness passing in a street car saw the occurrence, but did not know the parties. Appellant admitted that he was with the parties but denied the robbery.

Pie made application for a continuance to secure the testimony of two witnesses, both of whom, he alleged, resided in Dallas county. By both of them he sought to prove circumstantially facts which would weaken the state’s testimony. Some of the state’s witnesses testified that the injured party exhibited some money during the time he and appellant were together in the saloon, and it was shown that appellant at the time of his arrest had in his possession $3 or $4 in silver. One of the absent witnesses would have testified that the injured party had exhibited about SO cents during the evening, and had said that he had no more, and the same witness would testify also that appellant exhibited some money, $4 or $5 in silver, which occurred a little over an hour before the alleged robbery. The other witness it was alleged would testify that the injured party was trying to borrow money from some unknown person during the evening he was with appellant, and that appellant had some $2 or $2.50 in silver.

The application is justly criticized in the state’s brief for failure to show materiality of this testimony. This is an element of an application which has often been held essential. Bowman v. State, 40 Tex. 11, and other cases cited by Mr. Branch in his Ann. P. C. p. 184, § 312, subd. 3.

The state also insists that the discretion of the trial judge in overruling the application was not abused in view of the absence of diligence to procure the witnesses, which the law requires. Each of the witnesses were alleged to have resided in Dallas county. What distance from the county seat is not shown. Subpoenas are alleged to have been issued for each of them, and for one of them it is alleged a subpoena was placed in the hands of the sheriff of Dallas county. No allegation is made with reference to the service of the subpoenas, nor information as to why they were not served, if in fact, they were not. The trial took place on October 1, 1917. The subpoenas were issued on the 29th day of September. No reason is shown in the application for failure to issue them at an earlier date, nor is there allegation as to what, if any, efforts were made to secure their attendance during the progress of the trial after their absence at the calling of the case was discovered. Under the circumstances, the trial court was warranted in concluding that there was an absence of sufficient diligence shown.

It is a uniform rule that an application for a continuance must show what was done with the process, whether it was served and when it was returned. Mitchell v. State, 36 Tex. cr. R. 299, 33 S. W. 367, 36 S. W. 456; Branch’s Ann. P. C. p. 187, § 315, and cases cited. Examining the application in connection with the evidence adduced upon the trial, it cannot be said that the absent testimony was such as would have shown the action of the trial court erroneous. Branch’s Ann. P. C. p. 183, § 306, and cases cited.

A bill of exceptions discloses that the state’s witness Turner was asked by appellant’s attorney, as a preliminary to an objection to his testimony, if he had not been to the penitentiary and been pardoned, to which he gave an affirmative answer, whereupon appellant objected to the witness giving testimony upon the ground that he was disqualified. The bill of exceptions fails to show that the witness did give any testimony. Even if the witness was incompetent, failure of the bill to show that he gave material testimony against appellant leaves the record in condition which renders it impossible for this court to determine that the supposed error was harmful. This is held in Hunger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; Flores v. State, 72 Tex. Cr. R. 233, 162 S. W. 883; 2 Vernon’s Crim. Stats, art. 744, note 21, p. 537, and cases cited. The trial court, in qualifying the bill, states in effect that he overruled the objection because the appellant had, by proving that the witness had been pardoned, established his competency and waived the production of the primary evidence of his pardon.

Where the right is asserted in a timely way, the party offering the witness may demand that his disqualification must be proved by the record of the judgment of conviction, but that this right is waived by failing to assert it at the proper time. White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72; Moore v. State, 39 Tex. Cr. R. 266, 45 S. W. 809. This principle appears to have been applied with reference to the proof of pardon in the case of Perry v. State, 79 Tex. cr. R. 644, 155 S. W. 264. In that case, however, the question arose with reference to using the disqualification and restoration of competency with reference to impeaching the witness. There is also some discussion of the subject in Batson v. State, 36 Tex. Cr. R. 616, 38 S. W. 48. The view seems reasonable that, if a party undertaking to disqualify a witness relies upon parol testimony to show conviction of crime, and in connection with the proof thus made he, by the same character of proof and at the same time, shows that witness’ competency has been restored by a pardon, he has failed to establish the disqualification of the witness, and by his own voluntary proof by parol that the witness has been pardoned waives his right to demand that the opposite party produce the pardon as a predicate for the witness’ testimony on the facts of the case. Whether this be the correct view or not, there is an absence of error shown by the bill in the failure therein to show'that an alleged disqualified witness did give testimony adverse to the appellant.

Finding no reversible error in the record the judgment of the lower court is affirmed. 
      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      (&»For other oases see same tooic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes
     