
    ANDERSON v. STATE.
    (No. 7703.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.)
    1. Criminal law <&wkey;l 144(7) — Presumption in favor of a ruling denying continuance.
    In an, application for continuance because of the absence of a witness, where the record discloses that there might have been either diligence or a lack of it in securing the absent witness, presumption will be indulged in favor of the ruling of the lower court denying the application.
    2. Criminal law <&wkey;9I-7(2)r-;New trial granted where the testimony of an absent witness would change the result though lack of diligence shown.
    In a prosecution for assault to rape, while a continuance may have been properly denied for lack of diligence in securing an absent witness, where the testimony of absent witness was material, and probably true, and would not merely be impeaching, but was the statement of the alleged injured girl made so shortly after the occurrence as to be a-part of the res gestae, a new trial should be granted.
    3. Criminal law <&wkey;366(3) — Statement of injured girl made shortly after assault held res gestae.
    A statement of an alleged injured girl after an assault to rape to her mother so shortly after the occurrence -as to' appear spontaneous, and to preclude design, is res gestae.
    <§c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Frank Anderson was convicted of assault to rape, and appeals.
    Reversed and remanded.
    Moyers & Creighton, of Mineral Wells, and Hood & Shadle, of Weatherford, for appellant.
    W. A. Keeling, Atty. Gen., and C. D. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Palo Pinto county of assault to rape, and his punishment fixed at three years in the penitentiary.

The alleged assault occurred at the home of the mother of prosecutrix. Two persons beside appellant and prosecutrix were present at the time of said alleged assault, both of whom testified, one, for the defense, that no ássault of any kind was made by appellant, and the other for the state, that if any assault was made he did not see it or hear of same at the time. Appellant also testified that he did not touch prosecutrix on said occasion. The alleged injured female, a girl 13 years of age, testified: That appellant wanted her to go into the kitchen with him, and that she refused. That she then went into the front room, and was going to light a lamp, and that appellant “grabbed me around the arm at title door.” That he had a roll of money, and offered it to her if she would, go with him, but she picked up a bottle, and told him she would hit him if he did not turn her loose. He offered her some money if she would do something, and she said, “Can’t you give me the money, without taking me in there?” and he said “No,” he wanted her to go in there with him; and she told him she would not do it. He offered her $20 if she would agree to the act. She got loose from him and went out into the yard, and then to a nearby house, and telephoned for officers. When the officers came appellant was not there.

It seems to be admitted that the otherj man at 'the house at the'tinté was drunk, and that in a short time after the alleged assault the mother of prosecutrix came home. Virgie Wells, the other girl present, testified that the drunken man tried to assault prose-cutrix just before she telephoned for the officers, but that appellant did nothing to said prosecutrix.

Application for continuance was made because of the absence of Mrs. Welch, mother of prosecutrix. It was therein stated that if present she would swear that she came home about 20 or SO minutes after the alleged-assault, and at once closely questioned her daughter as to the acts and conduct of appellant toward her, and that prosecutrix told her that he did not place his hands on her or touch her in any way; also that pros-ecutrix told her that she phoned for the officers because of the condition and conduct of McCracken, the other man. In reference to this application the state asserts a lack of diligence on the part of appellant. The subpoenas for the absent witness were issued on October 21st to Palo Pinto and to Lamar counties, the trial being had on October 24, 1922. An inspection of the record discloses that the indictment herein was returned October 11th, but no showing is made as to when appellant was arrested. If he was arrested at once after the return of the indictment the showing as to diligence would hardly be sufficient; if arrested at or about the date of the issuance of the subpoenas, diligence would appear. Every presumption is in favor of the correctness of the ruling of the lower court, and we conclude that the learned trial judge was doubtless justified in overruling this application.

However, another question arises. In support of his motion for a new trial appellant appended the affidavit of the absent witness almost in exact accord with the testimony set out in the application as expected of her. She also shows that, she left Palo Pinto county, soon after this occurrence, and probably could not have been reached by subpoena if issued sooner. Here, then, arises a question as to the duty of the trial court in passing on the motion for new trial. As said by us in Eppison v. State, 82 Tex. Cr. R. 364, 198 S. W. 948:

“Though there was lack of diligence shown in application for a continuance which justified the trial court in overruling it, it, with the affidavit supporting it, were proper factors to be considered on the motion for a new trial. Tull v. State, 55 S. W. 61; Stewart v. State, 52 Tex. Cr. R. 100; Cockerel v. State, 60 Tex. Cr. R. 124; Collins v. State, 148 S. W. 1065; Rushing v. State, 62 Tex. Cr. R. 309. And by this court in reviewing the action of the trial court in overruling such motion. Rumbo v. State, 28 Tex. App. 30; Clark v. State, 30 Tex. App. 377; Walker v. State, 32 Tex. Cr. R. 175; Logan v. State, 39 Tex. Cr. R. 573; Hardin v. State, 40 Tex. Cr. R. 208; Lopez v. State, 52 Tex. Cr. R. 226; Pressley v. State, 60 Tex. Cr. R. 102; Branch’s Ann. P. C. § 338.”

In Mr. Branch’s Ann. P. O. § 319, many; authorities are cited as supporting the proposition that, even though the continuance be properly denied for lack of diligence, yet, if the testimony, when viewed in the light of the evidence adduced at the trial, appears material and probably true, a new trial should be granted. As we view it, the testimony of Mrs. Welch would not be merely impeaching; it was to the statement of the alleged injured girl to her mother so shortly after the occurrence as to appear spontaneous and to preclude design, and, as we understand the opinions of this court, this has uniformly been held res gestee and the rule laid down would seem applicable to the instant case. That such testimony would be material seems beyond cavil, and in our opinion the motion, for new trial should have been granted.

For the error of the trial court in refusing said motion, the judgment will be reversed, and the cause remanded.  