
    McCULLEY v. STATE.
    (No. 9736.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1925.
    Rehearing Denied Eeb. 17,1926.)
    1. Criminal law <&wkey;>696(5) — Refusal .to strike pertinent testimony admitted without objection not error.
    In prosecution for statutory rape, refusal of court to strike pertinent testimony admitted without objection was not error.
    2. Criminal law &wkey;720(7') — Rape &wkey;43(2>— Evidence of birth of child in due time proper; prosecuting attorney’s reference to child born to prosecutrix held fair argument.
    In a prosecution for statutory rape, proof that child was born in due time was proper, and it was fair argument for prosecuting attorney to say that, if in after years prosecutrix should marry and had children, she would be looking at them and wondering- where this child was.
    3. Criminal law t&wkey;74l (I), 742(1).
    Credibility of witnesses and weight to be given their testimony for jury.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>9l7(2) — Denial of continuance held not to require new trial, where it did not appear testimony set forth in application was probably true or that witness if present would have given it.
    In prosecution for rape, denial of continuance for absence of witness did not require new trial, in face of conceded lack of due diligence, where it did not appear that testimony set up in application was probably true or that witness would have given same if present.
    Appeal from District Court, Briscoe County ; R. C. Joiner, Judge.
    Guy McCulley was convicted of rape, and he appeals.
    Affirmed.
    W. W. Kirk, of Plainvietv, and A. L. Love, of Austin, for appellant.
    
      Dennis Zimmermann, of Tulia, and Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Briscoe county of rape, and his punishment fixed at five years in the penitentiary.

There were no exceptions reserved to the charge of the court, nor to the introduction or rejection of any testimony. The record presents six bills of exception taken to the refusal of the trial court to strike from the record various parts of the testimony which had been admitted without objection. We do not think the action of the court in refusing the request of appellant in this regard erroneous. The evidence in each instance was admitted without objection, and was pertinent.

There is a bill of exceptions complaining in the argument of the district attorney to the effect “that if in after years prosecutrix should marry and have a home and children, she would be looking at them and wondering where this child was,” meaning the child born to prosecutrix as the result of the alleged intercourse between herself and appellant. We see no reason why this was not fair argument. The charge against appellant was statutory rape, and the claim of prosecutrix was that a child was born as the result of the intercourse had by her with the accused. Proof that a child was born to her about the ordinary length of time from the date of her alleged criminal connection with appellant was proper, and the argument such as here referred to was a fair discussion of the matter. Rhea v. State (Tex. Cr. App.) 275 S. W. 1023.

Complaint is made of the refusal of a continuance. The application wholly fails to show any diligence, nor was there any affidavit of the absent witness attached to the motion for new trial. In its absence we might observe that we do not believe the absent testimony such as that if it had been present, there would have been any likelihood of a different verdict.

The testimony is short, consisting only of that of the prosecutrix, the father of prose-cutrix, and the. woman in whose house the child was born; these being state witnesses. For the - defendant only two witnesses appeared, both of whom gave testimony indirectly tending to affect the reputation of the prosecutrix.

The law of the case having been submitted fairly to the jury, and it being their province to pass on the credibility of the witnesses and the weight to be given their testimony, and there being evidence in the record sufficient to support the conclusion reached, the judgment will be affirmed.

On Motion for Rehearing.

Appellant complains at length of our upholding the refusal of his second application for continuance. The indictment in this case was returned in October, 1924, and the case was not tried until April, 1925. It is not claimed in the application for continuance that any process was issued for the absent witness after October 30, 1924. Appellant admits in his motion that he has not shown diligence, but urges the application of the rule that even where diligence is wanting, if it appear on the trial that the absent testimony is material and probably true and that it might have changed the result, a new trial should be granted. Under the facts in this case, we see no reason for the application of this rule. The absent witness was expected to testify to a conversation had by him with' prosecutrix and in regard to the authenticity of a letter claimed by prosecutrix to have been received by her from appellant. The statement of facts is entirely devoid of any reference to the matters expected of the absent witness. Prosecutrix was not asked to state whether or not she had the conversation with him referred to in the application for continuance.No effort whatever appears to show that the letter received by prosecutrix, and testified to by her as being in the handwriting of appellant, was in fact written by the absent witness. We have found nothing in the record to incline us to the view that the testimony set up in the application for continuance was probably true or that witness would have given same if present.

We see no reason to come to a different conclusion in regard to the testimony of the father of prosecutrix or that of the state witness Mrs. Cox.

Appellant’s motion for rehearing will be overruled. 
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