
    CARSON v. STATE.
    (No. 7318.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.)
    1. Criminal law <&wkey;603(2) — Application for continuance held insufficient.
    Under Code Cr. Proc. 1911, art. 608, an application for continuance, attempting to excuse failure to issue process for witnesses, and averring that accused had some witnesses in a named county, by whom he “expects to prove that he is not guilty,” but giving the name of no witness and stating no fact to which any would testify, held insufficient.
    2. Rape <&wkey;l7 — Common-law marriage no defense to charge of rape on female under 14.
    Where it was undisputed that prosecutrix was under 14 years of age, a common-law marriage of her and accused was no defense to charge of rape, in view of Rev. St. art. 4609, prohibiting marriage of females under 14.
    Appeal from District Court, Denton County ; C. R. Pearman, Judge.
    W. O. Carson was convicted of rape, and appeals.
    Affirmed.
    R. C. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The indictment charges appellant with rape upon Margaret McCrory, a female under 18 years of age. Conviction resulted, appellant’s punishment being fixed at confinement in the penitentiary for seven years.

Prosecutrix lived with her parents in Den-ton county. She was 13 years of age at the time of the alleged offense and was not yet 14 at the time of the trial. Appellant was a young man 19 years of age. He and prose-cutrix were sweethearts and had talked about getting married. He told her he had a marriage license which he had procured at Decatur, and she left home under the representation from him that they would go to a certain preacher and get married. Instead of going to the minister’s, they went to Denton, where they occupied a room together during the night, at which time he had intercourse with her. They told the lady at the rooming house they. were married and represented themselves to be husband and wife. Appellant finally told prosecutrix he had lost the marriage license which he claimed to have procured at Decatur and said something about trying to get some more at Denton. The next day after having spent the night at the rooming house, they went' to Carrollton, and from there to Port Worth, where the father of prosecutrix found them and took her home. It appears from the record that appellant had not secured a license at Decatur and this statement to prosecutrix was untrue. He states in his testimony that hh did intend to marry the prosecutrix if he could obtain license, and claims to have made inquiry about getting the license, but does not appear to have gone to the county clerk’s office either in Denton, Decatur, or Port Worth, and made any effort to do so.

A bill of exception is reserved to the refusal of the court to grant a continuance. The application therefore is rather remarkable. It undertakes to present an excuse why no process had been issued for witnesses, and then avers that appellant has some witnesses in Wise county by whom he “expects to prove that' he is not guilty.” The name of no witness is given, nor is any fact stated to which any would testify. See article 608, C. C. P., for requisites of application for continuance.

Appellant requested four special charges, all based upon the theory that prosecutrix was his wife by virtue of a common-law marriage. Article 4609, Revised Civil Statutes, positively prohibits males under 16, or females under 14, years of age from marriage. The undisputed evidence shows prosecutrix to have been under 14 even at the time of trial. The charges requested were not the law, so declared by the article referred to, and in Hardy v. State, 37 Tex. Cr. R. 55, 38 S. W. 615, construing same.

Appellant testified on direct examination that some trouble had arisen over cheeks he had given in Decatur, and that while in jail at that place two jail deliveries had occurred; that he went out on the first one but-came back himself; that he also went out the second time and was arrested and returned by the officers. The inquiries of his mother complained of in bill No. 2 appear to have been with reference to these same matters. She answered neither of the questions, and under the circumstances we do not regard as harmful the asking of them.

There appear to be several matters complained of in bill of exception No. 3; in fact, it is three or four bills in one. No sufficient facts are stated with reference to any of the things complained of to enable us to intelligently pass upon them. Grounds of objections are urged, but the facts are not certified as being true, thereby furnishing no basis for the objections. See Branch’s Ann. P. 0. §§ 207 and 209.

Finding no errors which would justify a reversal, the judgment must be affirmed. 
      
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