The State has filed a motion for rehearing, not questioning any rule of law announced in our original opinion herein, but vigorously contending that bill of exception No. 4, upon which we based our reversal, was insufficient to present the question discussed and decided. The bill as heretofore intimated has been obscured by vague and irrelevant statements and the ponderous recital of verbatim extracts from the statement of facts which appear entirely immaterial.
The State contends that the bill is sufficient to show that the jury retired and in its absence appellant had read to the court in the jury's absence a part of the former testimony of the deceased witness LaBleu as a predicate for his impeachment; that this was followed by placing the witness Bowers on the stand and having him testify to certain statements in contradiction of the statement of LaBleu, all of which happened before the court in the jury's absence; that the State objected to the testimony of Bowers because the same was hearsay and "no testimony was before the jury to form a basis to impeach LaBleu"; that the court sustained these objections, to which the defendant excepted. A careful reconsideration of the bill convinces us that its proper construction is as contended by the State, that is that the appellant was put upon notice that the State's objection was that he had not proved before the jury a proper predicate. The bill further certifies that no such predicate was *Page 509 offered before the jury. Obviously the witness could not be impeached without laying the proper predicate before the jury and this not having been done, or attempted, no error is shown therein. Perea v. State, 88 Tex.Crim. Rep.,227 S.W. 305.
The refusal of a subsequent application for a continuance is made the subject of bill of exception No. 1. The absent testimony related to proof of statements allegedly in contradiction to the testimony of State's witness LaBleu, who is mentioned above. A motion to continue for impeaching testimony will ordinarily be refused. Branch's P. C., Sec. 324; Rodgers v. State, 36 Tex.Crim. Rep., 38 S.W. 184; McCuen v. State, 75 Tex.Crim. Rep., 170 S.W. 738. In addition, this bill is fatally defective in failing to show either the materiality of this testimony or such facts as would make it admissible under the rules already laid down for the impeachment of a deceased witness. If appellant with full knowledge of this testimony failed to lay a predicate for its introduction when LaBleu was on the witness stand at a former trial, he could not thereafter use his alleged impeaching testimony. Authorities cited in original opinion. The existence of such facts as would render this testimony admissible should have been alleged in appellant's motion for continuance.
Finding no error in the record properly presented for review, the State's motion for rehearing is granted and the judgment of the trial court is affirmed.
Affirmed.
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 APPELLANT'S MOTION FOR REHEARING.