
    FULTON v. STATE.
    (No. 9126.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.
    Rehearing Granted. Nov. 18, 1925.)
    1. Criminal law (&wkey;l 144(7) — Presumed that application for continuance later of two applications, where not shown by bill of exceptions.
    When bill of exceptions taken to refusal of continuance does not show whether the application was the first or subsequent application, it will be presumed to be a subsequent application.
    2. Criminal law' &wkey;>603(7)— Application for continuance to prove alibi should be definite as to facts showing opportunity of witness to prove alibi.
    An application for continuance to prove an alibi should be so definite as to statement of facts as to at least show opportunity of absent witness to be able to testify as to the alibi.
    3. Criminal law &wkey;>603(5) — Application stating mere conclusions proposed to be proved by alibi witness properly overruled.
    An application for continuance, setting out mere conclusions and vague and indefinite statements proposed to be proved by alibi witness, is properly overruled.
    4. Criminal law <&wkey;806(3) — Charge need not couple reasonable doubt with each element of offense, where given in regard to offense as whole.
    Court, in charging on elements of offense necessary to warrant conviction, need not couple reasonable doubt with each of elements, if it be given in regard to all elements as whole.
    On Motion for Rehearing.
    5. Criminal law <&wkey;959 — Court not judge of probable truth of absent witness’ testimony, when affidavit of witness produced showing contemplated testimony.
    If, on motion for new trial, affidavit of absent witness is produced showing that he would testify as stated in application for continuance, then court is not judge of probable truth of absent witness’ testimony.
    6., Criminal law &wkey;>595(9) — Application for continuance to prove alibi held sufficient in view of attached affidavit of absent witness.
    Application for continuance to prove alibi held sufficient, where affidavit of absent witness was attached to motion for new trial showing that he would testify positively to facts showing a complete ■ alibi for defendant at Very time prosecuting witness testified that offense was committed.
    Commissioners’ Decision.
    Appeal from District Court, Bell County; Lewis H. Jones, Judge.
    Willie Fulton was convicted of rape, and be appeals.
    Reversed and remanded.
    Dewitt Bowmer, of Temple, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Bell county for the offense of rape, and. his punishment assessed at confinement in the penitentiary for a term of seven years. The offense is alleged to have been, committed on Jewel Tharp, a female under the age of 15 years. Prosecutrix testified that at about the time alleged in the indictment she, appellant, another boy, and another girl went riding in a Ford ear at night, and that appellant stopped the car, and the other couple got out, walked on up the road, and left her and appellant together, and that appellant had carnal knowledge of her in the car. The state also offered in evidence the other girl, who testified that she and her escort left appellant and prosecutrix in the car at the place designated by prosecutrix. The state also offered testimony to the effect that on or about the 24th day of October, 1923, prosecutrix gave birth to a baby. Pros-ecutrix also testified that the. act of intercourse happened-about the latter part of January or the first of February.

By bill of exceptions No. 1, appellant complains at the court’s action in overruling his application for a continuance. Appellant stated in said application that he expected to prove by the witness Artie Fulton that the defendant was not in Bell county, Tex., during the month of February, 1923, but that during the whole of the said month was in Lubbock county, Tex., and was not present in Bell county, Tex., the latter part of January, or at any time during January or February, 1923, and that during the whole of said months, and for four or five months next succeeding said months, was a resident of Lubbock county, Tex. The court overruled this application for a continuance, and after the state’s testimony was closed appellant again presented his application, and amended it by stating that he could prove by the witness Artie Fulton that appellant was not present in Bell county during either January or February-, 1923.

When the bill of exceptions, taken to the refusal of a continuance, does not show whether the application was the first or subsequent application, it will be presumed to be a subsequent,application. Massie v. State, 30 Tex. App. 64, 16 S. W. 770; Roma v. State, 55 Tex. Cr. R. 345, 116 S. W. 598. Under tbe rule above stated, tbis will be treated as a subsequent application.

It is well settled in Texas that an application for continuance to prove an alibi should be so definite as to tbe statement of tbe facts as to at least show opportunity of the absent witness to be able to testify as to the alibi. Underwood v. State, 38 Tex. C. R. 193, 41 S. W. 618; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Villereal v. State (Tex. Cr. App.) 61 S. W. 715.

It is also the rule that an application that sets out mere conclusions and vague and indefinite statements proposed to be proved by an alibi witness is properly overruled. Cullen v. State (Tex. Cr. App.) 30 S. W. 219; Washington v. State, 51 Tex. Cr. R. 545, 103 S. W. 879.

Under tbe rules above stated, it is manifest that the application was wholly insufficient. We are not prepared to hold that tbe mere statement that tbe defendant was mot in Bell county but was in Lubbock county for a number of months showed with sufficient certainty and detail facts to which the absent witness would be able to testify. We see no error in the court’s action in overruling tbe application for a continuance.

Appellant presented many objections and exceptions to the court’s charge, which we have very carefully examined, but are unable to sustain any of appellant’s contentions with reference thereto. The charge properly defined the offense of rape under the age of consent, and further charged the jury that, to warrant a conviction, it devolved upon the state to establish beyond a reasonable doubt the following three things: (1) The act of carnal knowledge at or about the time and place charged in the indictment; (2) that prosecu-trix was under the age of 15 years; and (3) that prosecutrix was not the wife of the defendant—and instructed the jury that if the state has failed to establish any of the said propositions to acquit the defendant.

Appellant insists that the question of reasonable doubt should have been applied to each of the three elements of the offense separately, and that it was not sufficient to charge it as above stated. We cannot agree with this' contention. It has long been the rulq in this state that the charge need not couple reasonable doubt with each phase of the ease if it be given in regard to the whole case. Hutto v. State, 7 Tex. App. 48; Pope v. State, 75 Tex. Cr. R. 50, 170 S. W. 151. Branch’s P. O. page 5, for full collation of many cases sustaining the above proposition.

In addition to the foregoing charge’ submitting the reasonable doubt, the court also charged that the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt, and instructed the jury that if they had a reasonable doubt to acquit him.

Every right which the defendant had was thoroughly protected by the court’s charge; and, there being no error found in the record, it is our judgment that the case should in all things be affirmed.

PER CURIAM.

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 Motion for Rehearing.

BERRY, J.

At the last term of this court this case was affirmed. A careful examination of appellant’s motion for rehearing has served to convince us that we were in error in failing to hold that appellant was entitled to a new trial on account of the court’s action in overruling his application for a continuance.

We adhere to the holding in our former opinion to the effect that the motion for a continuance was rather vague, in that it failed to set out in detail the facts that appellant expected to prove by the absent witness. Our attention, however, has been called by appellant to the fact that on the motion for a new trial the appellant produced the affidavit of the absent witness, and in this affidavit the absent witness not only avers his willingness to testify that the defendant was not in Bell county but was in Lubbock county at the time the offense was alleged to have been committed, but he further avers in his affidavit that he is willing to testify that the appellant was a resident of Lubbock county, Tex., during the latter part of the year 1922 and the major part of 1923, and, further, that the appellant was not in Bell county during any part of the months of January and February, 1923, but that he was continuously in Lubbock county, some 400 miles distant from Bell county, during said two months, and that the witness was in daily contact with and saw the appellant daily during said months of January and February, 1923.

IT seems to be well settled in this state that if, on motion for new trial, the affidavit of the absent witness is produced showing that he would testify as stated in the application for a continuance, then the court is not the judge of the probable truth of the absent witness’ testimony.

In the instant case, as above indicated, the affidavit of the absent witness was attached to the motion for a new trial, and the same shows that he will testify definitely and positively to facts that are certain and pertinent showing a complete alibi for the appellant at the very time that the prosecuting witness testifies that the offense of rape was committed. Under this condition of the record, we have no option but to grant the motion for'rehearing and to reverse and remand the case. Section 334, Branch’s Ann. P. C.; Garrold v. State, 11 Tex. App. 219; Jetton v. State, 17 Tex. App. 311; Freeman v. State, 75 S. W. 505; Bryant v. State (Tex. Cr. App.) 271 S. W. 610; Derrick v. State (Tex. Cr. App.) 272 S. W. 458.

Appellant’s motion for rehearing is granted, and the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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. 
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