
    SUTTON v. STATE.
    (No. 3373.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Daw (§ 600) — Continuance-Admissions to Prevent Continuance.
    It was not error to deny a continuance, where defendant’s counsel was permitted to make a statement to the jury as to what he claimed an absent witness would testify, and the prosecuting attorney admitted its truth, and defendant’s attorney then expressed himself as satisfied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. § 600.]
    2. Cbiminal Law (§ 406) — Evidence—Stipulation as to Facts.
    On a trial for testifying falsely before the grand jury, an agreement between defendant’s attorney and the district attorney, made in defendant’s presence and acquiesced in by him, that a witness who desired to go home would testify that defendant was sworn before the grand jury by the foreman, was properly admitted in evidence, especially where it was proven by other testimony that defendant was sworn and testified before the grand jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.] .
    3. Cbiminal Daw (§ 722) — Tbial—Argument of Counsel.
    On the trial of a person for testifying falsely before the grand jury that he had carnal in' tercourse with a girl claimed to have been seduced by another man, where there was evidence that defendant had visited at the home of the girl’s father, the statement of the district attorney in his argument that defendant voluntarily appeared before the grand jury after visiting the girl’s family and tried to ruin her was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from District Court, Hopkins County ; Wm. Pierson, Judge.
    Ed Sutton was convicted of perjury, and be appeals.
    Affirmed.
    W. P. Leach, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. v
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the penitentiary.

The grand jury of Hopkins county was investigating a charge of seduction brought against one Jesse Creaey, wherein he was charged with seducing Miss Jennie Willis. Appellant appeared before said grand jury and testified that he had carnal knowledge of the young lady on two occasions, once on one Sunday night in June, 1912, on their way home from I-Iam Campbell’s, where they had been visiting, and that he had carnal intercourse with her in June, 1912, on their way home from a dance at Babe Wallace’s or Edgar Booth’s. Both of those statements are alleged to be false, and the testimony would authorize the jury to find, both that appellant did so testify before the grand jury, and that the statements were untrue.

In the first bill of exceptions it is contended that the court erred in overruling his application for a continuance. In the bill of exceptions it is shown that the prosecuting officer admitted that the witness would testify as alleged, and that such testimony was true. In approving the bill the court states:

“Upon the trial of the case the defendant was instructed to and did make a statement to the jury covering what he claimed the absent witness would testify, and the prosecuting attorney admitted its truth. The defendant’s attorney and the district attorney stated fully these things, and defendant’s attorney expressed himself as satisfied.’’

Under such circumstances the bill presents no error.

In the next bill it appears that L. L. Bowman was in attendance on court as a witness, and desired to go home, when the following agreement was entered into:

“It is agreed by and between the state and the defendant that L. L. Bowman, a witness for the state, will testify that Ed Sutton, the defendant in the above numbered and styled cause, was sworn before the grand jury of Hopkins county, Texas, by Ben Ramsey, the foreman of said grand jury, at the time and place mentioned in said indictment.
“[Signed] Mayo Neyland, District Attorney.
“W. P. Leach, Attorney for Deft.”

The defendant now complains that the court erred in permitting this agreement to be introduced in evidence. In approving the bill the court states:

“The agreement was made in the presence and hearing of defendant, and fully acquiesced in by defendant.”

As thus qualified the bill presents no error. In addition to this, it is proven by other testimony that appellant was sworn and testified before the grand jury as alleged.

Appellant complains that the district attorney in his argument said:

“This defendant voluntarily appeared before the grand jury, after- visiting the family of Willis and breaking bread with them, and tried to ruin this little girl.” ,

The record is replete with evidence that defendant was a visitor at the home of Mr. Willis, the father of the girl, and if there could be anything more damaging to her reputation than his testimony before the grand jury we cannot think of it at this time. The remarks were comments on the evidence introduced, and the hill presents no error.

The only other ground in the motion for a new trial alleges the insufficiency of the testimony. The testimony of Jennie Willis, who denied that appellant at any time ever had carnal knowledge of her, and the testimony of Mrs. 1-Iam Campbell, who testified that appellant and Jennie Willis were not at her house in June, 1912, and other testimony, fully supports the verdict, for it is shown, and not denied, that appellant did testify before the grand jury as alleged.

The judgment is affirmed.  