
    MAY v. STATE.
    (No. 3726.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 24, 1915.)
    1. Criminal Law <&wkey;598 — Continuance — Grounds — Due Diligence.
    In a prosecution for seduction, it was not error to refuse a continuance on the grounds of absence of witnesses, where it appeared that defendant was indicted in November, 1913, arrested in February, 1915, and trial set for May, 3915, and defendant did not attempt to subpoena the absent witness until the day before his trial, since, under such circumstances, defendant failed to show that he had exercised due diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. <®=> 598.]
    2. Criminal Law <&wkey;608 — Continuance — Grounds — Affidavits.
    It was not error to refuse a continuance in prosecution for seduction, where defendant failed to produce any affidavits that the absent witnesses would testify as stated in his motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. &wkey;608.]
    3. Criminal Law <@^956 — Continuance — Discretion.
    Since a continuance in a criminal case is not a matter of right, but is within the sound discretion of the trial court, it w.as not error to-refuse a continuance and to overrule a motion for new trial as soon as filed, where defendant had two days after the verdict in which he could secure the affidavits of absent witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. t&wkey;>-956.] '■
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Will P. May was convicted of seduction, and he appeals.
    Affirmed.
    Critz & Woodard, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with seduction, and when tried was convicted, and his punishment assessed at two years’ confinement in the penitentiary.

Appellant’s counsel in Ms brief and oral argument before tMs court admitted that none of tbe bills of exception in tbe record as qualified by tbe court, present error, unless it be tbe one in wliicb be excepted to tbe action of the court in overruling bis first application for a continuance. He earnestly insists that this bill presents error, and has filed an able brief on that question alone, and if diligence was shown and an allegation that tbe witnesses would testify as stated, perhaps it would present error. But does tbe application show that diligence required under tbe law? Appellant admits be and Miss Effie Quillin bad several acts of carnal intercourse in July and August, 1912. They both fix tbe first date as July 5, 1912, and that tbe last act was perhaps tbe latter part of August, 1912, when appellant left Callahan county. By tbe testimony of both of them it is reasonably certain that he is tbe father of her baby, born May 7, 1913. Tbe grand jury of Callahan county indicted appellant November 13, 1913. Tbe sheriff of Callahan county did not locate appellant until in February, 1915, when be was arrested in Coleman county, and gave bond for bis appearance in court in Callahan county in May, 1915. WMle tbe state contends be was a fugitive from justice, appellant contends that be bad never been out of tbe state, did not know be bad been indicted until be was arrested, and was not then and bad not been avoiding arrest And it may be that bis contention is correct. But it is apparent be was arrested in February, and while be says be did not then know be was indicted, and thought that only a complaint bad been filed against him, the slightest diligence would have disclosed that an indictment bad been returned by tbe grand jury and was pending against him. In fact, tbe bond be signed would have so informed him if be bad read it. Notwithstanding be was arrested in February, be apparently made no preparation for bis trial until be went to Callahan county in May, and did not have the subpoena issued for the absent witness until tbe evening before bis case was called for trial next morning. It is true be says be was not made aware of tbe facts be expects to prove by tbe witnesses until that day, but if be bad used any diligence or effort, is it not reasonable to presume that be could have ascertained such facts earlier if be bad tried? At least tbe record does not disclose any effort on bis part to learn about such testimony or witnesses.

Again be does not pretend to have any personal knowledge that tbe witnesses would testify to tbe facts be states. He says some one informed him that tbe witnesses would so testify in a casual conversation, without giving tbe name of bis informant. Attached to bis motion for a new trial is no affidavit of tbe witnesses that they, or either of them, would so testify; no affidavit of tbe person who told him in a casual conversation they would so testify is attached, stating they would so testify. So it is made apparent that appellant did not know they would so testify, does not state they would so testify, but states specifically be merely has been so informed, in a casual conversation, without giving tbe name of his informant. This is too vague and indefinite. In fact, tbe attendance of one of the witnesses whom be says be was informed in the casual conversation would testify that tbe reputation of Miss Quillin for virtue and chastity was bad was secured, and be refused and failed to so testify, thus evidencing that the information appellant received in tbe casual conversation was not very reliable.

Appellant says tbe trial court overruled bis motion for a new trial as soon as filed, and be bad no opportunity to secure the affidavits of tbe witnesses. He had two whole days after verdict in which to file a motion for a new trial, and if be bad taken this time, if tbe witnesses were in the county, be could have secured tbe affidavits, if they would so testify, before filing bis motion. Or if be bad not tbe means to make tbe trip, be could, in bis motion, have set up that fact, and asked that process be issued for tbe witnesses, and that they be beard on tbe motion. Had be done this, doubtless tbe court would have granted such prayer, or if tbe court bad not done so, it would have shown an effort on tbe part of appellant and faith in what be bad been informed in tbe casual conversation they would testify. He did not do this, and we have no information they would so testify if a new trial was granted. Appellant does not pretend to know that they would do so, and apparently does not know tbe name of tbe person who informed him tbe witnesses would so testify, because be does not give it in bis application for a continuance, nor in tbe motion for a new trial. If there was any evidence that tbe witnesses would so testify, .there would be merit perhaps in appellant’s contention, but as tbe record presents tbe question, it is too indefinite for us to bold that tbe trial court abused Ms' discretion in overruling tbe application for continuance, and tbe motion for new trial based on that ground. A continuance is no longer, under our law, a matter of right, but is addressed to tbe sound discretion of the trial judge; and, when we are asked to review this discretion, it ought to be made apparent by tbe record that tbe witnesses would testify as alleged, or at least that appellant bad good reason to believe that they would so testify. Tbe materiality of the testimony is not questioned, for if tbe witnesses would so testify, tbe testimony would be upon a material issue in tbe case, but tbe record discloses that appellant does not know they would so testify, and is relying upon tbe statement of another person whom he casually met, and. the affidavit oí such person is not attached to the motion.

The judgment is affirmed. 
      ig^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     