Appellant has filed a motion for rehearing in which he insists we were wrong in holding the action of the trial court in overruling his first application for continuance not to have been erroneous. This has caused us to look more closely into the matter. There is no question as to the diligence used in attempting to procure the absent witnesses. The indictment was returned on July 28, 1920; appellant was arrested July 29th. On the same day application for process was made for some of the absent witnesses, and process issued for all of them by July 30th, except Wileman. The case was tried on August 4th. The application for continuance is defective as to George Taylor and Robert Robinson in failing to state what it is expected to prove by them, and as to J.E. Wileman, in that it fails to show process was ever issued for him. It is good as to Walters, Davis and Simpson, and shows that they knew the age of prosecutrix, and would swear she was more than fifteen years of age at the time of the alleged offense. We do not think we were in error in the original opinion as to Walters being a fugitive from justice. In addition to the explanation of the trial judge, the record discloses that he had been arrested and escaped. But we were in error in our statement that the application failed to show the address of Davis and Simpson. A copy of the subpœna for Simpson shows that he resided at Sipe Springs in Comanche County, and that Davis resides at Merkle in Taylor County, but was at the time of trial in Jones County, which latter fact had just been discovered. Prosecutrix having testified that, among the many others upon whom she had bestowed carnal favors, were also Davis and Simpson, and that she told them at the time she was over fifteen years of age, we were at first of the opinion the court had not abused his discretion in refusing continuance and overruling a motion for new trial, if he concluded the absent witnesses would, if present, not have testified as represented, or if so, it would not be probably true. In Tull v. State, 55 S.W. Rep., 62, which was a case of statutory rape, it was *Page 236 declared a witness who had seen the entry of the date of prosecutrix's birth in the family Bible, and heard her and members of the family make statements as to her age contrary to the present contention, could testify thereto. If, in the instant case, the circumstances were such that the absent witnesses had no knowledge of the age of prosecutrix, except from her statements, they could testify thereto. It would be for the jury to give such weight to it as might seem proper. Because prosecutrix claims they had also had carnal intercourse with her would be no reason why the jury should not hear the witnesses speak upon the question of her age; and they might not agree with her upon the issue of intercourse. As said in the original opinion, the facts disclose an unfortunate condition of perverted morals, hard to realize. Prosecutrix was not particular in selecting those upon whom her favors were bestowed. If she is to be believed, among them was her own brother; and also, a negro with whom she spent several hours at a barn in the nighttime. Her conduct is so unnatural, and reprehensible we feel that the appellant should not be deprived of any legitimate testimony, however slight, that may tend to contradict prosecutrix, or to show that her testimony as to her age is not true, that being the vital point in the case. Eppison v. State, 82 Tex. Crim. 367; see also, Branch's Anno. P.C., Section 324, subdivisions 4 and 5, and cases cited; Rushing v. State, 62 Texas Crim Rep., 310.
Having concluded that appellant's application for continuance should have been granted, and that we were in error in holding otherwise in our original opinion, the motion for rehearing is granted, and the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.