
    CREACY v. STATE.
    (No. 2945.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 595)—Continuance—Absence of Witness.
    It was error to deny a continuance of a trial for seduction because of the absence of a witness by whom accused expected to prove that he had sexual intercourse with the prosecutrix before and after the alleged offense, though the state introduced evidence that the witness did not have intercourse with the prosecutrix at any time, and would not swear to any act of intercourse before a time long subsequent to the offense, it appearing on the trial from the testimony of the prosecutrix and others that he at least had the opportunity to commit the act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.] '
    2. Seduction (§ 40) — Evidence — Admissibility.
    On a trial for seduction, letters written by the prosecutrix long after the offense, and of Tittle importance, were not admissible.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. § 40.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Jesse Creacy was convicted of seduction, and he appeals.
    Reversed and remanded.
    D. Thornton, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P., J.

Appellant was convicted of seduction. He was tried very soon after the indictment was found. He made a motion for a continuance on account of the absence of his witness Ed Sutton. We think the diligence .was amply sufficient. He swore in his motion for continuance that he expected to prove by said witness that he, the witness, associated with the prosecutrix in a familiar way, and on or about the night of January 28, 1911, and a number of times before and after that date, he had sexual intercourse with her. In hearing appellant’s motion for new trial on said ground, the state contested what said witness would swear, and introduced evidence tending rather strongly to show that the witness would not swear that he had intercourse with said girl until June, 1912, and only twice thereafter. The state also introduced evidence tending, with more or less force, to show that said witness did not have intercourse with the girl at said times, even in June, 1912, and subsequently. The prosecutrix testified that the first act of intercourse with appellant was in January, 1911. By taking the testimony as a whole, without reciting it and without discussing it, we believe the appellant ought to have had an opportunity to have his witness Sutton present and testify in the case. The prosecutrix and others testified to such a state of facts as would show that the absent witness, at least, had the opportunity, if he did not commit the act.

Appellant vigorously contests the sufficiency of the evidence and of the' corroboration of the prosecutrix. As the case must be reversed, we do not discuss these questions. It may be that on another trial, the state can introduce other facts and circumstances and other evidence to corroborate the prosecu-trix.

We think the letters of the prosecutrix proposed to be introduced were inadmissible. They were so long after the alleged offense and of not sufficient importance to justify their introduction in evidence.

There are no other questions raised in such a way that we can consider them. For the error in refusing a continuance, or rather, in not granting appellant’s motion for new trial because of the refusal of a continuance, the judgment is reversed and the cause remanded.  