
    Gregorio Cortez v. The State.
    No. 4688.
    Decided November 14, 1917.
    Bape—Second Application for Continuance.
    Where, upon trial of rape, defendant filed his second application for eon tinuance and did not allege therein that he could not prove the facts set out therein by any other witness known to himself, and it appeared from the record that the same facts if true could have been proven by other witnesses who were not summoned, the motion was correctly overruled; besides, the diligence used was insufficient.
    Appeal from the District Court of Yal Yerde. Tried below before the Hon W. S. Anderson.
    Appeal from a conviction of rape; penalty, twenty years imprisonment in the penitentiary.
    The opinion states the case.
    Ho brief on file for appellant.
    
      E. B. Hendricks Assistant Attorney General for the State.
   DAVIDSON, Peesiding Judge.

Appellant was convicted of rape and allotted twenty years confinement in the penitentiary.

The issue is sharply drawn as to guilt. The daughter of appellant ■swore that’ her father had been having intercourse with her against her will and under threats, but this would make but little difference perhaps in view of the fact that she was under'fifteen years of age. Her testimony is positive and to the point. His testimony directly contradicts that of his daughter. She says that it occurred in a room at night where the family were all sleeping; that her father made her get in bed with him, her mother and the other children sleeping on the floor. Hone of the children were used as witnesses in the case except prosecutrix, and the wife was not called by her husband to testify. Appellant’s theory with reference to this was, however, that his wife was very antagonistic to .him.

Appellant filed a second application for a continuance. He desired the testimony of three absent witnesses named Haves, Hernandez and Salinas. He desired to contradict his daughter’s. testimony in regard to certain statements she made to the effect that he remained for a ■couple of months in the house and did not leave it while he was having intercourse with her so that she might not escape and inform against him. All these matters occurred in the town of Del Eio. His statement was that he did not remain in the house with his daughter, as she testified, but was engaged in business making money to support his family, and that all the money he made he gave to his family. Among other things he mentions the names of certain witnesses who knew that he was about the streets of Del Eio and engaged in business in that town. These were Hernandez, Cantu, Miers, Eodriguez and Arteaga. This was a second application. Appellant had to swear, in order to comply with the law, that he could not prove these facts by ■any other witness known to himself. In his testimony he mentions these other parties as knowing the fact that he did not remain in his house as testified by his daughter, and that he was about the town pc Del Eio and engaged in business of one sort or another.- ' He mentions  