
    CORTEZ v. STATE.
    (No. 4688.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Criminal Law' <®=»608 — Continuance to Procure Testimony — Application.
    In liis application for continuance to procure the testimony of absent witnesses, defendant had to swear, to comply with the law, that he could not prove the facts he desired to prove by such witnesses by any other witness known to himself.
    2. Criminal Law <®=o614(1) — Continuance to Procure Testimony — Case eor Denial.
    Defendant’s application for second continuance to procure the testimony of three absent witnesses was properly denied, where his testimony showed that he might have proved the same matters otherwise than by the particular witnesses.
    Appeal from District Court,. Val Verde County; W. S. Anderson, Judge.
    Gregorio Cortez was convicted of an offense, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape and allotted 20 years’ confinement in the penitentiary.

The issue is sharply drawn as to guilt. The daughter of appellant swore that her father had been having intercourse with her against her will and under threats; but this would make hut little difference, perhaps, in view of the fact that she was under 15 years of age. Her testimony is positive and to the point. His testimony directly contradicts that of his daughter. She says that it occurred in a room at night where the family were all sleeping; that her father made her get in bed with him, her mother and the other children sleeping on the floor. None of the children were used as witnesses in the case, except prosecutrix, ■ and the wife was not called by her husband to testify. Appellant’s theory with reference to this was, however, that his wife was very antagonistic to him.

Appellant filed a second application for a continuance. He desired the testimony of three absent witnesses, named Naves, Hernandez, and Salinas. He desired to contradict his daughter’s testimony in regard to certain statements she made to the effect that he remained for a couple of months in the house, and did not leave it while he was having intercourse with her, so that she might not escape and inform against him. All these matters occurred in the town of Del Rio. His statement was that he did not remain in the house with his daughter, as she testified, but was engaged in business making money to support his family, and that all the money he made he gave to his family. Among other things, he mentions the names of certain witnesses who knew that he was about the streets of Del Rio and engaged in business in that town. These were Hernandez, Oantu, Miers, Rodriguez, and Arteaga. This was a second application. Appellant had to swear, in order to comply with the law, that he could hot prove these facts by any other witness known to himself. In his testimony he mentions these other parties as knowing the fact that he did not remain in his house as testified by bis daughter, and that be was about tbe town of Del Rio and engaged in business of one sort or another. He mentions tbe fact that be was engaged in a butcher shop about 20 days, and sold meat to customers at the butcher shop, and other matters are mentioned. There is no showing made as to why these witnesses were not summoned or process issued for them. If he was engaged in the business he mentioned, and in connection with some of the witnesses named, he could prove those facts, if they were true; at least he could have secured their attendance, or sought to do so. His application for a continuance makes no mention of these witnesses, and yet he testifies as to their knowledge of these matters while on. the witness stand. We are of opinion, without discussing the diligence, which we think was not sufficient, that this application does not present itself for favorable consideration.

The judgment will be affirmed. 
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