At a former day of this term the court reversed and remanded this cause, the opinion being by Judge McCord, on the ground that appellant requested the court to charge the jury that though they might believe that prosecutrix yielded to defendant under a promise of marriage, if the prosecutrix had had carnal intercourse with some other person or persons, then it would be their duty to acquit, and the court had refused said special charge.
The State filed a motion for a rehearing, alleging that defendant had requested two special instructions on that phase of the case, and the court had given charge No. 3 requested by defendant, but same had been lost and not copied in the transcript. The charge alleged *Page 249 to have been given fully covers the point on which the case was reversed, and upon a hearing the court trying the cause substituted the charge. The trial court testifies he gave the charge as substituted, in substance, at defendant's request, as do one or two other witnesses. The foreman of the jury testifies he has no recollection of such charge having been given. If this was the only error complained of in the case, we would have no hesitancy in granting the motion for rehearing and affirming the case, as the recollection of the trial judge is clear about the matter, but in the record we find defendant's first application for a continuance. It appears that defendant was indicted on June 9 and was arrested on June 10 and his case called for trial on June 14, the fourth day after he was arrested. On June 14 he filed an application for continuance on account of the absence of the witness John Tarply, whose home is alleged to be in Delta County, but who was temporarily in Oklahoma. Appellant states that he was arrested on the 10th day of June; "that on the 11th day of June, 1910, he applied for and caused to be issued a subpoena for his witnesses, among others, for the witness John Tarply. That said subpoena, with the return of the officer thereon, is here referred to and made a part of this application. That by the said return the said witness, John Tarply, was not served, the return as to him stating that he is out of the county.
"Applicant states that for many years the said witness has resided in Delta County and that until a few days ago applicant still believed that he was in said county, but was informed for the first time about two or three days ago that he was somewhere in the State of Oklahoma, the exact location he did not learn; that he has not been able to ascertain definitely the location of said witness, so as to apply for a commission to take the deposition of the said witness.
"Applicant states that as soon as the indictment was returned he began to prepare for his defense and has used due diligence to secure the attendance of his witnesses, and has used due diligence to locate the said witness.
"Applicant stated that he expects to prove by said witness that prior to October 1, and October 10, 1909, that the said John Tarply had carnal intercourse with the prosecuting witness, Maud West; that he is informed, and so states, that Maud West will testify that she and defendant became engaged to marry each other about the 1st day of October, A.D. 1909, and that defendant by virtue of his promise of marriage had carnal intercourse with her on the 10th day of October, A.D. 1909." The application contained the other allegations essential to a motion for a first continuance. If the witness would testify to the fact alleged, and the jury believed him, this would be a defense to the charge contained in the indictment, and we think the court erred in not granting the application under the facts in this case. Kelly v. State, 33 Tex.Crim. Rep.; De Warren v. State, 29 Tex. 465 [29 Tex. 465]; Hyden v. State, *Page 250 31 Tex. Crim. 401; McAdams v. The State, 24 Texas Crim. App., 86; Perez v. State, 48 Tex.Crim. Rep., 87 S.W. Rep., 351.
The court did not err in overruling the motion to quash the indictment, and we do not think there was any error in permitting the reputation of the witnesses at the time of the trial to be proven; the facts relied on to exclude this testimony might go to its weight but not to its admissibility.
For the error pointed out the motion for rehearing is overruled.
Overruled.