
    FLETCHER v. STATE.
    (No. 3716.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Prostitution <§=>4r-PR0cuRiNG — Evidence —Sufficiency.
    In a prosecution against defendant for unlawfully giving the name of his wife to another for the purpose of enabling the latter to have sexual intercourse with her, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dee. Dig. <®=34.]
    
      2.Criminal Raw <©=5595 — Continuance — Grounds — Intoxication oe Witnesses.
    In a criminal prosecution, it was not error to refuse a continuance, where the affidavit of the absent witness stated that he had seen the prosecuting witness intoxicated at about the time the offense was'alleged to have been committed ; the fact of the witness’ intoxication not rendering him incompetent.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. <@=5595.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Callie Fletcher was convicted of giving the name of his wife to another for the purpose of enabling the latter to have sexual intercourse with her, and he appeals.
    Affirmed.
    E. S. McAlester and Thos. P. Steger, both of Bonham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The charging part of the affidavit and information is that on or about the 13th day of February, 1915, Callie Fletcher unlawfully gave to Albert Critten-den the name of Ida Fletcher for the purpose of enabling Albert Crittenden to have unlawful sexual intercourse with and to meet said Ida Fletcher.

The facts are less than a page in length, and are made alone by the testimony of Albert Crittenden. He says:

“1 am a single person, and room over the Rag'sdale Building, over what is called Sid Smith’s store. I keep a room furnished ther.e, and, in addition to the ordinary furniture of an unmarried man, I keep a small oil cooking stove. I keep this to cook game on some time, as I hunt a good deal. I do not eat there regularly, and only have this stove to cook game on when I desire. I know the defendant, Callie Fletcher. There he sits in the courtroom. About the 13th day of February he came to my room. There was no one there but he and I. After remaining in my room some time, he asked me what I was doing with that stove. I told him I kept it there, and sometimes cooked my game on it after going hunting. He said to me that he would bring his wife, Ida, up there, and she could cook me a meal on it. I told him I did not eat here in the room, but only used the stove to cook game on occasionally. The defendant said that was all right; he would bring his wife, Ida, up there and leave her with me, and she would cook me a good meal. I said, ‘No,’ and the defendant said he would bring Ida, his wife, up there and leave us alone there together and would go off. He said, ‘You know Ida.’ I said to him, “Callie, you are a damn fool,’ and got up and left, he coming with me.”

This is the entire statement of facts, except the venue and date.

Under our statute this testimony is sufficient to prove the case. Appellant asked for a continuance, which was overruled and made a ground of the motion for new trial. The absent witness, Cole, filed an affidavit in connection with the motion for new trial as to what his testimony would be. I-Ie says that he was acquainted with defendant and the prosecuting witness, Crittenden; that he (witness) had been summoned as a witness for the defendant, Fletcher; that on the 13th day of February, 1915, he saw Crit-tenden several times, and that on said date, immediately before and after the occasion on which defendant is alleged to have made certain statements to the witness Crittenden, on which statements the affidavit and information is based, he (said witness Cole) was with Crittenden in his (Crittenden’s) place of business, and that on each of said occasions the witness Crittenden was drunk. We are of opinion there was no error in refusing this continuance. This witness does not show the state of drunkenness, or that he was too drunk to know what he was doing. If he was drunk at the time he was in his room, that fact could have been proved by Critten-den, or he could have been asked about it. This seems not to have been done. The mental status of a defendant by being drunk would not be an excuse for crime, and it could only be given in mitigation, if it is worth anything, and the ineonclusiveness of the statement of Cole does not place the matter in such attitude the defendant is entitled, we think, to the continuance. The same rule or similar reasoning would apply to witness’ testimony. It would not render him incompetent as a witness ordinarily. It was not sought to even prove by present testimony such condition.

The judgment therefore will be affirmed. 
      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     