
    WALKER v. STATE.
    (No. 6792.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law &wkey;U 159(3) — Conviction founded on conflicting evidence will not be disturbed.
    In a prosecution for statutory rape, where the evidence was conflicting, but was sufficient to support a verdict of guilty, the verdict will not be disturbed.
    2. Criminal law <&wkey;603(7) — Application for continuance for absent witnesses held defective.
    Under Code Cr. Proc. 1911, art. 608, requiring an application for a continuance for absence of a witness to set out facts expected to be proved by the absent witnesses, an application for a continuance for the absence of two witnesses, stating that defendant would “seek” to show certain facts by the “witness,” did not sufficiently state what be “expected” to prove, and in view of a failure by defendant on bis motion for a new trial to present affidavits from the absent witnesses showing what their testimony would have been, overruling a motion for a continuance founded thereon was not error.
    ■ 3. Criminal law <&wkey;687(I) — Refusal to permit introduction of witness after closing of evidence not error.
    Where evidence closed at the end of a day, it was not error the next morning for the court to refuse to allow defendant to produce a witness not present in court, who had not been summoned.
    4. Criminal law <&wkey;>958(2) — Motion for new trial for newly discovered evidence must be supported by affidavit of defendant.
    A motion for a new trial on the ground of newly discovered evidence must be supported by defendant’s affidavit that the evidence was unknown to him at the time of the trial, and could not have been discovered by reasonable diligence on his part; the affidavits of witnesses containing the newly discovered evidence not being sufficient.
    Appeal from District Court, Hood County; J. B. Keith, Judge.
    Fred Walker was convicted of statutory rape, and he appeals.
    Affirmed.
    B. H. Oxford, of Stephenville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. *
   HAWKINS, J.

Conviction is for statutory rape, punishment assessed at five years’' confinement in the penitentiary.

We gather from the record that appellant is a negro man about 62 years of age, and the alleged injured female, Jewell Keith, a little negro girl 10 years of age. Upon the occasion of this alleged offense it is claimed by the state that appellant took Jewell Keith and Ethel Wren, the latter being about the same age as prosecutrix, on the creek fishing. Jewell Keith testifies that, ■ostensibly for the purpose of finding a better fishing place, appellant took her with him, leaving Ethel alone, and accomplished the act of intercourse with her at that time. Ethel supports the testimony of prosecutrix, stating that appellant and Ethel left her, he saying they were going to find a better fishing place; that she, becoming tired of being alone, went to look for them, and found them in the act of copulation. Appellant testified, denying in toto the transaction. He claimed that he was at the time afflicted with a loathsome disease, and that his private parts were in such condition that if he had desired to accomplish an act of intercourse with a mature woman it would have been impossible for him to do so, and further that if he had committed an act of intercourse with prosecutrix the disease would have been communicated to her. It appears from the evidence that no such disease had been communicated to her, and the testimony was conflicting as to whether such communication would have necessarily occurred. Some of the physicians who testified asserted that if a male person afflicted with the disease from which appellant was suffering had intercourse with prosecutrix, it would have been likely that ■such disease would have been communicated .to her, but that such result would not always ■occur. The testimony of other physicians was to the effect that in their opinion, if such copulation had taken place, the disease would have been communicated. The doctor who •examined the little girl testified that he ■could not say that she had ever had intercourse with a man, and the testimony from him is- silent as to the condition of her private parts as to whether or not they were enlarged or showed the entrance, or probability of entrance, of any object as large as a male organ. He testified that he detected no sign of disease such as appellant was afflicted with. Prosecutrix herself testified positively to complete intercourse on the part of appellant. It will be seen that the testimony was conflicting, and was of that character which would have authorized the jury to have reached a different conclusion than that at which they did arrive, but, it being a matter purely for their determination, and the evidence being sufficient to support the verdict, we do not feel authorized to disturb the same by reason of such con-' flict.

The indictment against appellant was returned September 9, 1921. On the 12th of September, 1921, he caused subpoenas to be issued for Dr. O. L. Underwood and Dr. R. J. Milling, both of whom are alleged to have resided at Oisto, but the latter was temporarily in Palo Pinto county. The process was served on Dr. Milling, but as to Dr. Underwood was returned unserved. The case was tried September 26, 1921. It may be conceded that diligence was shown to secure these witnesses. We are of opinion, however, the application is defective as hereinafter pointed out. It is alleged in the application that—

“The defendant will seelc to show by the witness that he, defendant, for some years' past and up to and before this alleged assault was committed, had been treated for syphillis by this witness, and was in a critical condition, and would have conveyed said disease to any one with whom he would have carnal intercourse, and that the witness Jewell Keith had not had such disease conveyed to her.”

It will be noted that the application does not set out definitely what each of said witnesses will testify to. The application only States that the defendant will seek to show certain things by the witness. Article 608, Code Or. Proc., requires an application for continuance to set out the facts which are expected to be proved by the absent witnesses. To our minds there is a vast difference between a statement that accused expects to prove by a certain witness certain facts, or that the witness if present would testify to certain facts, and a statement merely that an accused will seek to prove by a witness certain facts. The allegation in the application is more analogous to an instance where a party complaining of the refusal of the court to admit offered' testimony simply shows by his bill of exception that he attempted to prove certain matters by a witness, without stating that the witness would have given certain testimony. Ahlgren v. State (Tex. Cr. App.) 238 S. W. 651 (opinion delivered March 15, 1922, and not yet officially reported).

The motion for new trial was passed upon by the court on October 6, 1921, 12 days subsequent to the trial, and there is no affidavit from either absent witness attached to the motion for new trial showing that if present they would have testified to the matters suggested in the application for continuance. If such affidavits were attached, we might look to them for information, but in their absence are constrained to hold that the court committed no error in overruling such application.

Appellant complains at the action of the trial court in declining to permit him to introduce the witness G. A Waltrip after the evidence in the ease had closed and before argument of counsel. The testimony of said witness would have tended to impeach the state’s witness Ruby Wren, and to have supported the testimony of appellant on a collateral issue, it being the contention of appellant that the witness Ruby Wren had tried to get $4 from appellant, and bad threatened that if .he did not let her have it he would live to regret it. The court approves the bill of exception with the explanation that the evidence closed on the 26th day of September, 1921, and the witnesses were released; that on the morning of the 27th the court waited 5 or 10 minutes for said Waltrip, who was not under process, to appear; that he was not produced, and thereupon the court read the charge to the jury, and the argument was had. We understand from the trial judge’s qualification that the witness was not present in bourt, and had not been summoned. Under these circumstances no error is shown by the bill.

As one ground of his motion for new trial appellant sets up newly discovered evidence, and attaches to his motion affidavits of G. A. Waltrip and Maud Crow as containing the evidence which he claims to be newly discovered. This court is not authorized to consider this ground of the motion because same is not sworn to. It has long been held in an unbroken line of decisions that where a new trial is sought on the ground of newly discovered evidence it is a prerequisite for the consideration thereof that the same be sworn to by defendant. It is not enough that the affidavit of the witness from whom it is claimed the newly discovered evidence will emanate is attached. The defendant by his own • affidavit must show that the evidence was unknown to him at the time of the trial, and could not have been discovered by any reasonable diligence on his part. Such verification is entirely lacking in the instant case. See Branch’s Anno. P. C. §§ 193-195; Young v. State, 86 Tex. Cr. R. 621, 218 S. W. 754; Parroccini v. State (Tex. Cr. App.) 234 S. W. 671.

The judgment of the trial court is affirmed. 
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