
    MEJIA v. STATE.
    (No. 7375.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1922.)
    Criminal law <&wkey;939(I)— Newly discovered evidence held insufficient to warrant new trial.
    In a prosecution for rape, where accused was described as wearing a mustache and identified at trial by the prosecuting witness, testimony by two neighbors of accused that he never wore a mustache held, under Yernon’s Ann. Code Cr. Proc. 1916, art. 837, subd. 6, insufficient to warrant a new trial, where none of those who had testified made any mention concerning a mustache, and accused showed no reason why the new witnesses, his neighbors,' could not have been produced before.
    &wkey;}For other oases see same toDic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Eusebio Mejia was convicted of rape, and he appeals.
    Affirmed.
    N„ D. Meyer, of El Paso, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The prosecution is for rape. The judgment condemns the appellant to confinement in the penitentiary for a period of. 15 years.

Isabel Gonzales, a girl 17 years of age, testified to a rape by force. She had no previous acquaintance with the appellant, but he, under the pretext of taking her to a place where she might get work, induced her to accompany him to a remote locality where the assault was made. She made outcry, and the appellant fled. Marks upon her body and facts revealed on examination by medical men corroborated her statement touching penetration and force. She described her assailant as a shox-t fellow, dark-complexioned, “pock-marked,” had thick upper-lip, some hair 'on lip, dressed in blue overalls, jumper, and striped shirt, very dirty. In the struggle she had kicked him on the side of his mouth.

The appellant was arrested in company with another man, who was slightly taller. Both "were taken in custody and exhibited' to the girl. She identified the appellant as her assailant.

■ Appellant testified and denied his identity as the assailant of the girl. He explained the bruise upon his face as due to the mistreatment by the police.

The sister of appellant and other witnesses testified in support of appellant’s claim of alibi.

The motion for new trial is based upon alleged newly discovered evidence and is supported by the affidavits of two witnesses, to. the effect that they had known the appellant for 10 months prior to the date of the alleged offense and had seen him almost every day for several weeks; that at no time during the several weeks just antecedent to the-date of the offense did he wear a mustache; in fact, the witnesses had never seen him wearing a mustache. They lived near the appellant and saw him very often. It was developed upon the trial that the prosecutrix claimed that her assailant, at the time of the assault wore a little mustafihe. This fact was controverted by the appellant and his sister. Other witnesses, including his in-tímate friends, who supported his alibi, made no mention of the mustache] No reason is given in the motion for the failure to produce the new witnesses at the.trial. They were both neighbors. If the appellant wore no mustache, he knew that fact, and, in the absence of some degree of diligence to bring witnesses to prove it, he manifestly does not bring himself within the rules of law governing a motion for new trial upon the ground that new evidence has been discovered. See Code of Crim. Proc., art. 837, subd. 6, and cases listed in Vernon’s Tex. Crim. Stat. vol. 2, p. 777. Among these are Burns v. State, 12 Tex. App. 269; Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833; Bruce v. State, 31 Tex. Cr. R. 590, 21 S. W. 681; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Jackson v. State, 81 Tex. Cr. R. 597, 196 S. W. 826; Coursey v. State, 82 Tex. Cr. R. 272, 199 S. W. 1091; Lewis v. State, 82 Tex. Cr. R. 285, 199 S. W. 1091; Williams v. State, 83 Tex. Cr. R. 26; 201 S. W. 188; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654; Johnston v. State, 86 Tex. Cr. R. 276, 216 S. W. 192; Jones v. State, 89 Tex. Cr. R. 355, 231 S. W. 122.

Finding no error in the record, the judgment is affirmed.  