The appellant was convicted for the offense of burglary, and his punishment assessed at two years in the penitentiary.
Appellant filed an application for a suspended sentence and entered a plea of guilty. By entering a plea of guilty, appellant admitted all criminating facts. alleged in the indictment. The minimum penalty was assessed. The only issue left for the determination of the jury was the issue of suspended sentence.
Appellant complains of the action of the learned trial judge in overruling his application for continuance based on the absence of several witnesses whose testimony is alleged to be material to the issue of suspended sentence. We doubt seriously whether the application shows the exercise of diligence by appellant. Appellant was indicted on the 7th of September, and his case was set for trial on the 14th of September. The application for continuance showed on its face that process for the absent witnesses was not applied' for and issued until the 13th of September. No reason is shown for not making application for said process earlier. However, we do not believe the facts expected to be proved by the absent witnesses would have been admissible as bearing upon the issue of suspended sentence, inasmuch as said witnesses were desired to testify to facts bearing upon the guilt or innocence of appellant. The only proof that could be offered on the issue of suspened sentence was proof only as to the general reputation of the appellant in the community in which he lived as to his being a peaceable, quiet, law-abiding citizen, and, in this case, as to honesty and fair dealing. The appellant proved by a number of substantial and reputable citizens of the county that his reputation in this respect was good. The state, to meet this proof, proved by a number of witnesses that appellant's reputation in this respect was bad. The issue was squarely up to the jury, and the jury decided it against appellant by refusing to suspend his sentence. We are unable to see how the appellant has been deprived of any substantial right by the failure of the learned trial judge to grant said continuance.
Appellant, by his third and fourth bills of exception, complains of the introduction of a portion of the written statment or confession signed by appellant to the effect that a man from Merkel left a red Ford roadster at the house of appellant *Page 35 for appellant's brother to repair, and that appellant took the highway licenses off said car and put them on the car he, appellant, was driving, being the car upon which the stolen tires were placed, and that appellant also took gasoline and a jack out of said Ford car and put them into the car he was driving. We fail to see in what way the admission of this testimony was injurious to the appellant, there being nothing in the bill and nothing in the record to indicate that the appellant had violated any law or had done anything wrong by taking the things off of and out of the Ford car and placing them in the car he was driving, appellant and his brother being in lawful possession of the red Ford car.
The manner employed by the District Attorney in interogating the appellant, complained of in the fourth bill of exception referred to above, does not show such error as would be reversible.
Bill of exception No. 5 complains that the learned trial judge permitted the witness, W. B. Poston to testify that he had at one time arrested the appellant for peeping into a man's house at his women folks, and that appellant had plead guilty to it. The appellant objected to this testimony for the reason that it did not involve moral turpitude because it was not shown that there was any law in force in this state making it unlawful to peep into a window at folks, and because if the appellant had been arrested by said officer for any offense and had plead guilty the record thereof was the best evidence. We are unable to agree with appellant's contention. We find in the statement of facts where the state introduced the witness Grover Hall, and the witness B. F. Morgan, both of whom testified that the reputation of appellant as to being a peaceable and law-abiding citizen and for honesty and fair dealing was bad, and that appellant on cross-examination, proved by both of said witnesses that the appellant was charged and accused of theft. Appellant, having elicited this testimony from the said witnesses on cross-examination, cannot be heard to complain of the evidence testified to by the witness Poston to the effect that appellant had been arrested and paid a fine for an offense not involving moral turpitude. With the record in this condition, we are constrained to hold that the evidence complained of in this bill was not of such harmful nature as to warrant a reversal of this case.
Appellant, by his bill of exception No. 6, complains of the remarks of the District Attorney in his closing argument to the jury wherein the District Attorney in the presence and hearing of the jury made the following statement: *Page 36
"Gentlemen of the Jury: John Grow testified on this stand that when he went to Jayton with Arvel Bryant that Bryant said nothing to his uncle about borrowing money, but he did testify that Arvel Bryant had told him that he had gone to Jayton and Munday several times before and disposed of stolen tires."
We are unable to agree with this contention, for the reason that from an examination of the bill and the record we find that the Prosecuting Attorney was clearly within the record in making this argument. The bill is defective in that it nowhere states appellant's objection or in what way said argument worked any injury to the appellant.
Finding no errors in the record, 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.
Morrow, P. J., absent.
ON MOTION FOR REHEARING.