After indictment on November 3, 1927, at which time the accused was under arrest, he was tried on the 17th day of June, 1929. No process was ever issued for the appearance of the witnesses in the case now under consideration. The process issued in any other cases pending against the accused growing out of different transactions is not available to establish diligence to secure the witnesses on account of whose absence the motion for a continuance was based. Vernon's Tex.Crim. Stat., 1916, Vol. 2, p. 310; Isham v. State, 49 S.W. 594; Wimberley v. State, 95 Tex.Crim. R.; Vanderberg v. State,66 Tex. Crim. 583.
In stating that there is no authorization by the court for the consideration of bill of exception No. 2 in question and answer form, we were mistaken. It is difficult to comprehend the bill as prepared. It seems that while the witness Rainey was on the stand for the State, he testified that as an officer he arrested the appellant for robbery and that the appellant at the time had a pistol. Objection seems to have been made and sustained. In the bill the court states:
"The State and defendant being unable to agree on just what transpired in reference to this bill, it is certified to by the court that it may pass to the higher court in question and answer form." *Page 548
In examining the testimony of the witness in the agreed statement of facts, the following appears:
"I (Rainey) am the officer that arrested Mack Houston for this robbery of Weaver. I arrested him out in the second ward at 96 Spruce Street. He had a pistol. * * * At the time I arrested defendant I did not arrest him for anything in particular."
Counsel for the appellant said:
"I want to renew the objection and ask the court to withdraw that from the jury."
Counsel for the State said that he had no objection, and the court said:
"All right, if it is agreeable all around, gentlemen of the jury, you will not consider the testimony of Mr. Rainey in any particular for any purpose whatever."
State's counsel said that the declaration of the witness that the appellant had a pistol was before the objection was made. To this counsel for the appellant demurred. State's counsel then said:
"The witness answered 'yes'. He moved that it be stricken out and it is agreed that it be stricken out, and the State rests."
In the procedure nothing is perceived that would warrant a reversal of the judgment. Even if the testimony mentioned remained with the jury, error is not perceived. The recitals in the bill do not negative the competency and relevancy of the testimony.
The motion for rehearing is overruled.
Overruled.