
    HILL v. STATE.
    (No. 7527.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1923.)
    1. Criminal law <&wkey;608 —Unsupported statement that process for absent witness was applied for insufficient to show error in denial of application for continuance.
    Error cannot be predicated on the denial of an application for a continuance because of an absent witness, where the record contains only appellant’s unsupported statement that process for such witness was applied for without any copy of it, or the substance thereof, or the returns made ther.eon.
    2. Criminal law c§=»598(6) — Diligence in seeking process for absent witness held not exercised.
    AVhere, after the return of an indictment on March 16th and a setting of defendant’s case for August 24th, process for an absent witness was not sought until August 14th, diligence was not exercised.
    3. Criminal law &wkey;>596(3) — Absence of witness sought only for purposes of impeachment not grounds for continuance.
    Application for a continuance on the grounds of the absence of a witness will not be granted where the witness is sought only for purposes of impeachment.
    4. Criminal law <&wkey;>603(9) — Application for continuance because of absent witness held properly refused.
    An application for a continuance on the grounds of the absence of witnesses, one of whom was out of the county and the other out of the state, which contained no allegation as to when they were expected to, return, if ever, held properly refused.
    5. Rape &wkey;»53(2)— Evidence held to sustain conviction for assault with intent to rape.
    Eviden.ce held to sustain conviction for assault with intent to rape.
    other oases see same topic and KEY-NUMBER in all Key-Numbered Uigests and Indexes
    Appeal from District Court, Newton County; V. H. Stark, Judge.
    Grant Hill was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    J. B. Eorse, of Newton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. '
   DATTIMORE, J.

From a _ conviction in the district court of Newton county for assault to rape with a penalty of three years, appellant appeals.

The record contains only two bills of exception, the first of which is to the action of the court in refusing to grant appellant a continuance. An examination of the record discloses that the indictment herein was returned March 16, 1922, and that the case was called for trial on August 24th following. It is alleged in the application for continuance that process was applied for for the absent witnesses on August 14, 1922, but no copy of any process, or the substance thereof, or the returns thereon, appears in the record, and the only thing upon which this court can rely in considering the allegation of the application that process was issued is the unsupported statement of the appellant therein. ' This has been held not sufficient. Clark v. State, 61 Tex. Cr. R. 597, 136 S. W. 260. This court has also held that for one to wait the length of time from the date of indictment to that alleged in the application herein, for the issuance of process for his witnesses, is not diligence. Dean v. State, (Tex. Cr. App.) 29 S. W. 477; Miller v. State, 74 Tex. Cr. R. 648, 169 S. W. 1164; Yelton v. State, 76 Tex. Cr. R. 38, 170 S. W. 318.

If for any reason this court should examine the application, it would be observed that the witness Matildia Gatlin was sought only for impeachment purposes. Many cases are cited in Branch’s Ann. P. C. § 324, sustaining the proposition that an application will not be granted for the purpose of obtaining witnesses solely upon impeachment. The other two witnesses whose testimony is set out in the application appear from its averments to be out of the county, one of them being in another state, and it is stated that appellant does not know where they are. There is no allegation of when they are expected to return, if ever, and cases will not be continued upon allegations of this character.

The other bill of exceptions is to the action of the court in overruling appellant’s motion for new trial. In the motion appellant sets out only the error of the overruling of his application for continuance and the lack of sufficient testimony to support the conviction. Prosecutrix was a negro girl under the age of consent, and she testified that on the occasion in question at night appellant caught her and choked her and dragged her off the road and tussled with her and tried to get her dress up, and that she scratched and kicked and finally got loose from him and ran. The court below submitted tl^e issue both of aggravated assault and rape in a manner acceptable to the appellant, for there appears no exception to the charge. We do not think this bill of exception shows error.

Not being able to agree with appellant’s contentions, an affirmance will be ordered.  