The appellant was tried and convicted of the offense of robbery, and his punishment assessed at confinement in the state penitentiary for a term of five years.
The record shows that John Gilbraith and Everett Flowers were engaged in trucking cotton from Paducah to Houston during the fall of the year 1933. Everett Flowers was employed by N. L. Gilbraith, the father of John, as a truck driver. They hauled cotton for John and N. L. Gilbraith and some for the Goodman-Graham Gin Company. Upon reaching Houston they would sell the cotton, convert the checks which they received for the cotton into currency, and return home with the cash. On the night of December 18, while on their return trip, John Gilbraith, who had on his person the proceeds of the sale of cotton, which amounted to approximately $1,350.00, was robbed by some person who had mounted his truck, broken the glass window out of the back of the cab of the truck, pointed a pistol at him and commanded him to stick up his hands, which Gilbraith declined to do when the robber struck him on the head with the pistol, took the money from his person, and hurriedly departed. Gilbraith subsequently identified appellant by his; voice as the party who robbed him. Everett- Flowers testified that he and Heber Johnson had theretofore entered into an agreement to rob Gilbraith on one of his return trips from Houston. The understanding was that when Gilbraith and Flowers started on their return trip from Houston that Flowers was to send a telegram to Gladys Johnson, sister of the appellant, in which the appellant was directed to meet Flowers at a certain *14point on the route- home and which Gladys would -make known-to the appellant. On the night of the robbery Heber Johnson came to Wichita Falls, engaged a cabin at a tourist camp where he went to sleep, but before retiring, requested, 'the. owner of the cabin to tell Flowers when he came along to wake him up.This message was delivered to Flowers, who complied with the request by awakening the appellant. The appellant then mounted the back of Flowers’ truck and rode on the same until they came to an underpass near Oklaunion when Flowers signalled to Gilbraith to stop and when he did so Flowers drove up alongside of Gilbraith’s truck so as to enable the appellant to step from Flowers’ truck on to Gilbraith’s truck. After they had left this point and driven about three-quarters of a mile, the robbery was consummated as hereinabove stated. The appellant did not testify but relied upon an alibi which he substantiated by the testimony of his father and which he claimed he could also have supported by the testimony of his mother if she had been physically able to appear in court. He also proved by Furnis Johnson, former husband of Gladys, that he was acquainted with Flowers; that he talked to Flowers at different times; that at one time Flowers told him about a scheme whereby they could make some money; that this happened some six or ten days prior to the date of the alleged robbery; that in this conversation Flowers told him that John Gilbraith wanted to be robbed, that he was willing to split the amount of money that was obtained in the robbery three ways after taking out the proceeds of the sale of his own cotton. Johnson told Flowers that he didn’t want to be in it; that he never informed John Gilbraith of this conversation.
By bill of exception No. 1 the appellant complains of the action of the trial court in overruling his first application for a continuance on the ground of the absence of his mother, Lizzie Johnson, who was seriously ill at her home, confined to her bed and under the care of a physician; that he expected to prove by said witness and would prove by her if present at the trial that on the night the offense of robbery is alleged to have been committed, defendant spent all of that night at home; that he came home that evening about 9 o’clock P. M. complaining of a cold and hurting in his chest; that she knows that he was home all during that night because she attended him from time to time during the night, administering to his illness. To the application for a continuance appellant attached the affidavit of Lizzie Johnson, which contains the following: “This affiant further deposes under oath and says that the defendant, Heber Johnson, *15came home that evening at 9 o’clock; that thereafter until daylight he was sick, threatened with pneumonia and suffering from pains in his chest and that she administered unto him from time time during that night and she knows he did not leave the house in which he was confined during that night between the hours of 9 P. M. and daylight.” The appellant also attached to said application a certificate from Dr. Coleman who certified that Mrs. Johnson had been under his care for several months and for the past several days had manifested an extreme nervous state for which he had administered opiates; that she is mentally and physically unable to appear in court for at least ten days; that it would be dangerous to her health to require her to appear in court. This application was contested by the State on the ground that the facts stated in the application for continuance of what he expected to prove by the witness Lizzie Johnson are not true and that said witness would not so testify; that said witness testified before the grand jury wherein the said witness stated that she had no recollection of the whereabouts of this defendant on the night of December 18, 1933, and knew nothing whatsoever of the robbery or any facts pertaining thereto. The State further asserted in its contest that Lizzie Johnson was mentally incapable of making -a competent witness, in this, that if she was placed on the witness stand in court she would become agitated and excited to such an extent that her mind would become impaired and her testimony untrustworthy of belief, and agreed that the deposition of the witness Lizzie Johnson might be taken and read to the jury upon the trial of the case.
Since the amendment of subd. 6 of art. 608, C. C. P., a continuance is not granted as a matter of right but is addressed to the sound discretion of the court called to pass upon the same. In the case of Wiley v. State, 36 S. W. (2d) 495, this court, speaking through Judge Lattimore on a motion for rehearing, said: “ ‘It is not in every case, however, even when the absent testimony is material and probably true, that this court will revise the ruling of the trial judge in refusing a new trial, considered with reference to the application for continuance. It is only in a case when, from the evidence adduced on the trial, we would be impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted, (citing authorities).”
*16In the case under consideration the State contested the application for continuance and introduced on the hearing of the contest the testimony of the absent witness given before the grand jury in which it appears that she testified that she had no recollection of the whereabouts of the defendant on the night of December 18th, the night the alleged robbery took place, and that she knew nothing whatsoever of the robbery or any facts pertaining thereto.' This testimony given before the grand jury was contradictory of the facts stated by her in her affidavit which was attached to the application for continuance. Under the law the trial court is vested with a wide discretion in passing upon an application for continuance, and this court will not set aside the judgment of the trial court on a controverted issue, unless it is made clearly to appear that the trial court abused his discretion. In the light of the entire record before ús we can not say that it is reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. We therefore overrule the appellant’s contention.
By bill of exception No. 2 the appellant complains of the action of the trial court in not permitting him to propound to the prospective juror J. A. White the following question: “In the event you are selected as a juror, and the court should charge you upon accomplice testimony and should instruct the jury that in order to convict the defendant that the jury must first believe that the accomplice testimony is true before you can convict the defendant, and if you didn’t believe it was true, would you acquit the defendant, if the Court so charged you ?”•
The bill of exception is qualified by the trial court and the qualification shows that appellant was permitted to test the jurors’ attitude toward the law and towards the Court’s charge generally. It appears from the bill of exception that appellant was attempting to interrogate the prospective veniremen antecedent to the introduction of testimony as to their attitude on hypothetical questions of law and fact which might arise on the trial of the case. By his ruling the trial court violated no specific statute on the subject touching the juror’s qualification, and the conduct of matters incident to the trial of the case must necessarily carry with it a certain amount of discretion on the part of the trial court. Each juror is required by law to take an oath that he will be governed by the law as given him in charge by the Court. Under such state of facts we do not believe the court committed any error, and in support of the views expressed we refer to the following cases: Hamilton v. *17State, 74 Texas Crim. Rep., 219; Collins v. State, 77 Texas Crim. Rep., 157; Willis v. State, 91 Texas Crim Rep., 329; Merkel v. State, 75 Texas Crim. Rep., 551, 171 S. W. 738.
By bill of exception No. 3 the appellant complains of the action of the trial court in not permitting the witness Smith Mallow to testify to appellant’s reputation for truthfulness and honesty. The appellant had already proved his good reputation as a law abiding citizen and if he had desired to prove a good reputation for honesty it might have been permissible, but his reputation for truth and veracity could not become an issue in the case until he had spoken in his own defense, which he declined to do. If he desired to prove his reputation for honesty, he should have confined himself to it and not coupled with it his reputation for truthfulness.
Bill of exception No. 9 relates to the same subject matter as bill of exception No. 2 and is overruled for the same reason.
Bill of exception No. 10 complains of the action of the trial court in permitting the State to introduce in evidence a certain telegram purporting to have been sent from Houston, Texas, on December 17th, to Heber Johnson at Vernon, Texas, which telegram reads as follows: “We leave here Monday morning. Arrive Wichita Falls about 9:30 Monday night. Everett Flowers.”
This bill of exception is not signed and approved by the trial judge and therefore cannot be considered by this Court.'
The objections addressed to the Court’s main charge seem to be without merit in that the charge adequately submitted every issue raised by the testimony.
The closing argument of the district attorney complained of by appellant appears to us to be a proper deduction from the testimony adduced upon the trial.
Finding no reversible error in the record, the judgment of the trial court is in all things 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.