
    DOWD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 29, 1912.)
    1. Criminal Law (§ 596) — Continuance-Absence of Witness.
    An application for a continuance for the absence of a witness, who would testify to a fact which was proven by ail the witnesses both for the state and for accused, was properly overruled.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    2. Criminal Law (§ 597) — Continuance-Absence of Witnesses.
    Where the prosecuting witness testified that another witness was present when a crime was committed, and neither he nor the other witness was asked in regard to the presence of a third person, an application for a continuance on account of the' absence of such third person was properly overruled, since under White’s Ann. Code Cr. Proc. art. 597, subd. 6, providing for a new trial if it appears on the trial that the evidence of an absent witness named in an application for a continuance was material and the facts set forth in the application probably true, the court must determine the materiality of the testimony and its probable truth in the light of the testimony adduced on the trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 597.]
    3. Criminal Law (§ 369) — Evidence—Other Offenses.
    On a trial for soliciting a female to visit a place for the purpose of having sexual intercourse with P., where the identity of the female was in issue, testimony of W. that he accompanied the prosecuting witness to the place where the crime was committed and had intercourse with such female was admissible for all purposes.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    Appeal from Hunt County Court; George B. Hall, Judge.
    J. R. Dowd was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was prosecuted under a complaint and information charging him with, on or about November 15, 1911, in Hunt county, Tex., “unlawfully soliciting and procuring one Mrs. Dowd, a female, to visit and be at a particular place, to wit, the private house then occupied by said J. R. Dowd, for the purpose of meeting and having unlawful sexual intercourse with one Jake Patterson, a male person.”

The evidence of Patterson and White would show that they met Dowd in Lone Oak about the date alleged, and that all three of them came from Lone Oak to Green-ville together; that while on the train Dowd asked Patterson if he would like to have sexual intercourse with a woman when they got to Greenville, witness giving an affirmative answer; - that when they got to Green-ville Dowd carried them to his home; that when they got to the house there was no I woman there, and Dowd went out and shortly returned with a woman whom he introduced to Patterson and White as Miss Ida Smith; that he told the woman she could make $10 off of these two men, and could buy her a skirt. Patterson testified he went in another room, and had sexual intercourse with the woman, and paid her $5. White testified he subsequently went in the room, and had intercourse with the woman, and paid her a like amount. On the day of the trial they identified Mrs. Dowd, appellant’s wife, as the woman with whom they had sexual intercourse, and who appellant introduced to them as Miss Smith.

Mrs. Dowd testified she was not at home that day, but spent the day with her aunt, Mrs. Sue Winton. Mrs. Winton and other witnesses testify to the same effect, and Mrs. Dowd further denied ever having sexual intercourse with Patterson and White at any time. However, Patterson and White positively identify her as the woman by a gold tooth in her mouth. This, in substance, is the testimony.

Appellant complains of the action of the court in overruling his application for a continuance on account of the absence of Tom Givins and G. W. Hogue. By Givins it is stated he expected to prove he went to Lone Oak that day. This is proven by all the witnesses both for the state and defendant; consequently this presents no error. As to the witness Hogue, the application fails to show the place of residence of said Hogue, and is lacking in diligence. In addition, it is stated that it is expected to be proven that Hogue was with Patterson and White and appellant on that occasion. While Patterson and White were on the witness stand, no question was asked them by defendant to develop the fact that Hogue was present; but, on the contrary, their testimony excludes that idea, and it has been held by this court that under subdivision 6 of article 597 the court is required to measure the testimony as to its materiality and probable truth in the light of the testimony adduced on the trial, and if not probably true, viewed from this standpoint, a new trial will not be granted. Section 643 of White’s Ann. Proc., and authorities there cited, including Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823.

Special charge No. 1 was fully covered by the court in his main charge, the court instructing the jury: “If you believe beyond a reasonable doubt that the defendant did, at the time and place as alleged by the state, procure a female for the unlawful purpose of meeting one Jake Patterson, to have unlawful sexual intercourse with the said Jake Patterson, you will not convict defendant, unless you further believe beyond a reasonable doubt that said female was the said Mrs. Dowd, as alleged by the state.”

Special charge No. 2 is not the -law, and should not have been given. The testimony of the witness White was admissible for all purposes, as the identity of Mrs. Dowd was an issue in the case.

This being a misdemeanor, the other grounds in the motion present no error.

The judgment is affirmed.

PRENDERGAST, J., not sitting.  