Walker v. State

Appellant insists that we were in error in disposing of his bill complaining of the refusal of continuance. It was his second application. As to witness, Young, the application shows entire lack of diligence. We must pass upon these matters from what we find alleged in the request for continuance in the light of the facts proven. Upon its face the application shows insufficient diligence in securing process for the witness, Mrs. Harrington, but it had been served and, in response, she was in court on May 18. The case was not tried at that time. Why it was not the application fails to show. When the case was called for trial on June 1 this witness did not appear. Conceding diligence as to her, the testimony expected was impeaching as to one feature of it and cumulative as to another. Under such circumstances the trial court committed no error in refusing the continuance.

We have again examined bills of exception 2, 3 and 4, in view of appellant's insistence that they were incorrectly disposed of. The bills are very general as pointed out in our original opinion, and perhaps should not be considered on that account but construing them most liberally, we nevertheless are of opinion they do not present error. Ruby Middleton was the party alleged to have been robbed. She testified that appellant not only robbed her but forcibly raped her. Appellant did not testify, and his chief defense centered around an attack upon the prosecuting witness. The bills disclose that appellant was seeking to show her bad moral character by specific acts of herself and others, and that her general reputation was bad for associating with those whose characters were also bad. In McIntosh v. State, 91 Tex.Crim. Rep., 239 S.W. 622, we held that a female witness might be impeached by asking her if she had not been convicted of being a common prostitute because this offense involved moral turpitude. The authorities are cited in the McIntosh opinion. (See also Steele v. State,251 S.W. 222.) The trial judge in qualifying one of the bills in question specifically says no such effort was made to impeach the prosecuting witness. Specific acts of an immoral character may not be shown as affecting the credibility of a female witness. (Authorities are collated in Hays v. State, 90 Tex. Crim. 355, 234 S.W. 898.) Neither may a witness' veracity be impeached by showing her general reputation for chastity to be bad. (For authorities collated also see Hays v. State, supra.) A witness may be impeached by showing that he has been convicted in the courts of theft, but not by proof that his general reputation is that of a thief, nor by proof that he is generally reputed to associate with thieves, nor that the general reputation of his associates is that of thieves. In effect this is what appellant undertook to do by the evidence rejected as shown by said bills 2, 3 and 4. We think it was properly excluded.

The motion for rehearing is overruled.

Overruled.