
    HATTON v. STATE.
    (No. 11297.)
    Court of Criminal Appeals of Texas.
    Jan. 25, 1928.
    Rehearing Denied March 7, 1928.
    1. Jury <&wkey;70(3) — It is primarily state’s duty to request special venire in capital case, but accused also may demand it (Code Cr. Proc. 1925, arts. 587, 588).
    Primarily, it is duty of state to request drawing of special venire in capital case, under Code Cr. Proc. 1925, art. 587, but accused also may make such demand under article 588.
    2. Jury <&wkey;70(2) — Accused may demand special venire, when capital case is called for trial (Code Cr. Proc. 1925, arts. 587, 588).
    Right to special venire in capital case, under Code Cr. Proc. 1925, art. 587, may be demanded and enforced by accused under article 588, at time case is called for trial.
    3. Jury <&wkey;70(2) — Accused’s right to special venire in capital case would not be defeated by prosecutor’s statement that he would waive death penalty (Code Cr. Proc. 1925, arts. 587, 588).
    Accused’s right to special venire in capital case, under Code Cr. Proc. 1925, arts. 587, 588, would not be defeated by prosecuting officer’s statement that he would waive death penalty.
    4. Criminal law i&wkey;598(8)— Continuance for absence of witness, not served because of defendant’s assumption that special venire, not demanded, would be ordered, held properly - denied for lack of diligence (Code' Cr. Proc. 1925, art. 588).
    Application for continuance for absence of witness, not served because of defendant’s assumption that, case being capital, special ve-nire would be ordered and case set for trial, held properly overruled for lack of diligence, in absence of showing of demand for such venire before or at time of trial, under Code Cr. Proc. 1925, art. 588.
    5. Criminal law &wkey;sl 144(7) — Denial of continuance is presumed correct, unless contrary be shown by bill of exceptions or motion for new trial.
    On appeal, trial court’s action in overruling motion for continuance is presumed correct, unless contrary be shown by bill of exceptions or motion for new trial.
    6. Criminal law <&wkey;>l 144(7) — Presumption that continuance was properly denied held not overcome, in absence of showing that attendance of absent witness could not have been . secured thereafter by issuance of attachment or new subpoena.
    Presumption in favor of correctness of court’s denial of continuance to procure testimony of witness, whose affidavit was taken and came into possession of defendant or his attorneys during day of trial, on which day he was present in county, held not overcome, in absence of showing that it was impracticable to secure his attendance by issuance of attachment or another subpoena after continuance was denied.
    Appeal from District Court, Morris County ; R. T. Wilkinson, Judge.
    Jab Hatton was convicted of statutory rape, and he appeals.
    Affirmed.
    Henderson & Bolin, of Daingerfield, for appellant.
    A, A. Dawson, State’s Atty.y of Austin, for the State. ’ •
   MORROW, P. J.

The offense is statutory rape; punishment fixed at confinement in the penitentiary for a period of five years.

The subject of the alleged rape is Beatrice McCollough, a negro girl. She testified that in July, 1926, she was raped by the appellant by force. She did not disclose the rape until some time in October following. At that time she had syphilis in a stage advanced to a degree that, according to the doctors who testified, it was of at least six months’ duration. According to her testimony and that of her mother and father, her age at the date of the alleged offense was less than 15 years. There was other cogent testimony that at the time mentioned she was about the age of 18 years.

Appellant testified that he had had intercourse with the prosecutrix many times; that the first occasion was in 1925, just before the 19th of June; that he did not give her syphilis; that he did not have it before having intercourse with her, but did develop it afterwards.

The indictment was returned October 20, 1926. The trial took place on April 18, 1927. A motion to continue the case was made and overruled. Explaining the delay in issuing subpoena, appellant, in his motion, said that, the case being a capital one, he assumed that a special venire would be ordered and the case set for trial; that, to his surprise, the prosecution waived the death penalty, and called the case for trial on April 18th, without a previous sitting. Upon that date he caused the issuance for subpoena, for Larry Hatton and James Body. Attached to the motion for new trial is the affidavit of James Body, also that of Larry Hatton, each stating that he had many times had sexual intercourse with the prosecutrix — all being prior to September 20, 1926.

It is contemplated that the jury be selected from a special venire in a capital case. Article 587, O. O. P. 1925. Primarily, it is the duty of the state to request the drawing of a special venire. Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209. The right to make such a demand is also possessed by the accused. Article 588, C. C. P. 1925. This right may be demanded and enforced at the time the case is called for trial. Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405. The right to the special venire would not be defeated by the statement of the prosecuting officer that he would waive the death penalty. Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163.

In the present instance, the record shows no complaint of the failure to furnish a special venire, nor does it show that one was demanded by the appellant. The statute being express in its terms that he might, before trial or at the time of the trial, demand a special venire, and the failure to do so being a voluntary act, his failure to use diligence in causing the issuance of subpoena for the witnesses would not be excused. It follows that as to the witness Body, who was not served, the application for a continuance shows a lack of diligence. However, the subpoena issued for the witness Hatton was served upon him on the same day that it was issued, and likewise the affidavit of the witness appears to have been made upon the same day that the subpoena was issued and returned. That is to say, the ease was called for trial on the 18th day of April, 1927, a motion for a continuance was presented and overruled on that day, subpoena for Hatton was issued, served, and returned on that day,' and his affidavit was taken upon the same day. On appeal, the action of the trial court in overruling the motion to continue is presumed correct, unless the contrary be shown by bill of exceptions or motion for new trial. Applying this principle and rule of practice to the peculiar facts' of the present record, it is believed that the presumption in favor of the correctness of the court’s ruling must prevail. It affirmatively appearing that the witness Hatton was present in Morris county on the day of the trial, that at some time during that day his affidavit was taken and came into possession of the appellant or his attorneys, it' is not made manifest that his attendance upon the trial could not have been secured by proper diligence. If, after the application for a continuance was overruled, it was practicable to secure the attendance of the witness by the issuance of an attachment or another subpoena, diligence would have demanded such action. The facts last above stated support the inference that the witness Hatton was, within the knowledge of the appellant or his attorneys, within reach of process during the trial. With the record before this court in its present condition, the presumption in favor of the correctness of the court’s ruling' in overruling the motion for new trial is not overcome.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have carefully examined appellant’s motion and again reviewed the record in the light of the motion, but have discovered nothing that leads us to the conclusion that the former disposition of the case was erroneous.

The motion for rehearing is overruled. 
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