
    BREWER v. STATE.
    (No. 7040.)
    (Court of Criminal Appeals of Texas.
    June 20, 1923.
    Rehearing Denied Oct. 24, 1923.)
    1. Rape <&wkey;54(l) — Testimony of prosecutrix need not be corroborated.
    In a prosecution for statutory rape, the testimony of the prosecutrix need not be corroborated.
    2. Rape <&wkey;52(I) — •Uncorroborated testimony of prosecutrix in statutory prosecution care, fully scrutinized.
    In a prosecution for statutory rape, where the uncorroborated testimony of prosecutrix is relied on to -sustain conviction, it must be carefully scrutinized.
    3. Rape <©=552(1) — Evidence held to sustain conviction of statutory rape.
    In a prosecution for statutory rape, evidence helé to sustain conviction.
    4. Criminal law <&wkey;l I44(i/2) — Prosecutrix presumed to have been under the rule where court denied defendant’s application for private interview with her.
    In a prosecution for statutory rape, in which the defendant claimed on appeal that the court had erred in refusing his application for private interview with the prosecutrix, it will be presumed that the prosecutrix was under the rule, since otherwise the court would have had no control over her.
    5. Criminal law <©=5666i/2 — -Refusal of defendant’s application for private interview with prosecutrix held not error.
    In a prosecution for statutory rape, court’s refusal of defendant’s application for a private interview with the prosecutrix, who was under the rule, except on the condition that the judge or the sheriff be present, helé not abuse of discretion.
    On Motion for Rehearing.
    6. Criminal law <&wkey;l!33 — Ex parte affidavits appended to motion for rehearing not considered.
    Ex parte affidavits appended to motion for rehearing cannot be considered.
    7. Criminal law <&wkey;9l7(2) — Denial of continuance for absence of witnesses held not ground for new trial.
    Denial of continuance for absence of witnesses helé not ground for new trial where it appeared during the trial that the absent witnesses would not have testified as expected, and where affidavits of the witnesses were not attached to the motion for new trial.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Oleve Brewer was convicted of rape, and he appeals.
    Affirmed.
    Earl M. Greer and B. J. Wynne, both of Wills Boint, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 7 years. The adequacy of the evidence is challenged.

The law did not require that there be corroboration of the prosecutrix. Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Cook v. State, 88 Tex. Cr. R. 659, 228 S. W. 213; Gazley v. State, 17 Tex. App. 278. When the uncorroborated testimony of the-prosecutrix is relied on in a ease of this-character, justice demands a most careful scrutiny of her testimony. On many occasions such testimony has been characterized by such self-contradictions or other weaknesses as have impelled this court to refuse-to sustain the conviction. Gazley v. State, 17 Tex. App. 278; Montresser v. State, 19 Tex. App. 281; Kee v. State (Tex. Cr. App.) 65 S. W. 517; Adkins v. State (Tex. Cr. App.) 65 S. W. 925; Donoghue v. State (Tex. Cr. App.) 79 S. W. 309; Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 271; Alcorn v. State (Tex. Cr. App.) 94 S. W. 468; Logan v. State, 66 Tex. Cr. R. 506, 148 S. W. 713; Edmondson v. State, 68 Tex. Cr. R. 113, 150 S. W. 917; Draper v. State (Tex. Cr. App.) 57 S. W. 655; Elam v. State (Tex. Cr. App.) 20 S. W. 710; Blair v. State (Tex. Cr. App.) 56 S. W. 622; Duckworth v. State, 42 Tex. Cr. R. 75, 57 S. W. 665; Galaviz v. State, 82 Tex. Cr. R. 377, 198 S. W. 947; Smith v. State, 86 Tex. Cr. R. 455, 217 S. W. 156.

Touching the sufficiency of the evidence, each case must stand upon its own facts. Among the cases in which the conviction upon the uncorroborated evidence of the prosecutrix has been sustained are found the following of recent date: Blackmon v. State, 87 Tex. Cr. R. 173, 220 S. W. 94; Cook v. State, 88 Tex. Cr. R. 659, 228 S. W. 213.

In the instant case the prosecutrix testified that, upon appellant’s invitation, she got into his automobile with him, at a certain place and time; that in a named locality the car was stopped and the act of intercourse accomplished with her acquiescence. By appellant’s admission, and by other testimony, it was shown that she was-in the car with him at a time and place-coinciding with her testimony, and that she-remained therein with him for about an hour. An examination of her person long after the occasion relied on showed the hymen ruptured and healed. She said that the act was accompanied by no pain or blood, and. that it was the first in her experience. The doctor witness said that this was improbable,, though not impossible. She, when first accused, made statements inconsistent with her-present testimony, in which she intimated that her brother or father had mistreated her. She admitted and endeavored,to explain, these declarations, and denied others attributed to her. Her statement is not so at variance with human experience as warranted the court in refusing to submit it to the jury. There were some corroborating circumstances found.

A continuance was sought to secure the testimony of Gary Barker, by whom appellant expected to prove compromising conduct of the prosecutrix with other men prior to the date of the offense. The witness appeared during the trial. He was not called to testify, appellant stating to the court that he had learned from the witness that it was not he, but another, who would give the testimony. No reason is advanced for the failure to get the information before, and no effort to secure the attendance of the other person named is revealed.

Appellant appealed to the court for a private interview with the prosecutrix. The court consented to the interview provided the judge or the sheriff be present. The appellant declined these terms. The bill does not disclose it, but we presume the witness was under the rule. Otherwise the court would have had no control over her. Creswell v. State, 14 Tex. App. 1; Bullock v State, 73 Tex. Cr. R. 424, 165 S. W. 196. Assuming that she was under the rule, we are aware of no authority which would withhold from the trial judge the discretion in a proper case to accompany permission to talk to a witness by reasonable condition. The facts revealed by the bill do not show an abuse of such discretion.

Attached to the motion for rehearing is the affidavit of a person named Teel to the effect that the sheriff had told him that if any person went upon the witness stand and testified against the reputation of the prosecutrix he would be taken to jail. The pertinency of this is not made plain. Teel was not a witness, nor is it claimed that he knew any relevant facts.

Finding no error, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The affidavits appended to appellant’s motion for rehearing are ex parte, and cannot be considered by this court for any purpose.

Appellant asked for a continuance to obtain the testimony of one Gary Barker. It developed on the trial that if any witness could testify to the fact desired from the absent witness the testimony could be obtained from Will Barker, and not Gary. No application for postponement or continuance on the ground of surprise was made, and the learned trial judge did not err in refusing the motion for new trial based on the overruling of the application for said continuance. It appeared on the trial that Gary Barker, the witness for whom a continuance was sought, would not give the testimony stated in said application as expected of him. What we have just said applies also to that part of the application for continuance sought because of the absence of Guy Henderson. It was stated in the application that appellant expected to prove by Henderson criminating conduct on the part of the prosecutrix with Gary Barker. In his bill of exceptions complaining of the overruling of his application for continuance appellant admitted that he was mistaken in charging that prosecutrix was out all night with Gary Barker, and that it was Will Barker, instead. In alleging the testimony of Henderson in the application for continuance, it was stated by appellant that he expected to prove by Henderson that he knew prosecutrix was out all night with Gary Barker. It might further be stated that there was no affidavit of either Will Barker or Guy Henderson attached to the motion for new trial as supporting the proposition that they would give the testimony stated in the application for continuance as expected. The forcible argument addressed to this court and contained in the application for rehearing but reflects matters which in all likelihood were presented to the jury and by them decided adversely to appellant’s contention.

Believing that the former opinion correctly decided the case, the motion for rehearing will be overruled. 
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