The able counsel, who represented appellant without reward and through the appointment of the court, have filed herein a vigorous and able motion for rehearing. We think this *Page 226 motion without merit, but in deference to the earnest contention of counsel we deem it appropriate to treat same at some length.
The suggestion is made that the opinion filed herein contains by implication some reflection upon counsel and implies the charge that they were negligent in not securing the affidavits of the missing witnesses. This is not, we believe, a fair inference from any statement in the opinion. In the explanation of the court approving the bill of exceptions it is recited that counsel employed in the case had, on account of the fact that his fee had not been arranged, withdrawn from it; and whereupon the court appointed the present counsel of appellant to represent him; that after the State announced ready for trial they presented an oral application for continuance, which by agreement was to be reduced to writing and stated that they understood Ecifro Castro had two boys who might know what time the defendant went to Castro's house. This application was made when the case was called for trial, which was on the 14th day of December. The amended motion for new trial was filed on the 19th day of December, 1908. The court adjourned on the twenty-second day of the same month. In view of the fact that the application was not presented until the case was called for trial, and that the court did not adjourn until eight days thereafter, it occurs to us that it was a matter of some consequence that no affidavit of these witnesses had been attached to the motion for new trial; and particularly so in view of the fact that, as appears by the explanation of the trial court, it was a matter of belief and opinion only as to whether the witnesses named would have given the testimony expected of them. It will be noted further that the indictment was returned into court on the 7th of December, and that no effort was made to secure the attendance of these witnesses until the case was called for trial. So that we think it a fair statement to say that the diligence, both before and after trial, was scarcely of that character that might reasonably be expected. Whatever may be thought of this question, it is to our minds settled beyond doubt that this testimony, if the witnesses would have so sworn, is not of such a character, in the light of all the facts, as to have required the court to grant a continuance. It will be noted that it is stated that these witnesses would testify that appellant got to their house about 8 or 9 o'clock. He admits being at home and near the scene of the crime about sundown. It was a distance of only four or five miles from the point fixed by the prosecuting witness. The assault occurred just before sundown. It was easily possible for appellant to have been at the place stated by those witnesses at 9 o'clock, and yet have been the person who committed the offense charged. It is further consistent with the State's contention that appellant was at the places designated in that application, and yet have committed the offense charged. The alibi sought to be proved by these witnesses does not combat the State's case sufficiently to render this proof inconsistent *Page 227 with the facts stated by the prosecuting witness. It is strangely significant, too, that appellant neither denied nor seeks to explain, while testifying, that the knife identified as his did not in fact belong to him or account for its presence, as the weapon inflicting the wounds upon this young girl. This certainly, in the absence of explanation so irrevocably plants him on the scene as to make his presence unquestioned and unquestionable. There is no hint in his testimony that this knife was or had recently been in the possession of any other person so as to relieve him of the charge of using it on her body, nor does he account for its presence in the person of this girl. The continuance was, we think, correctly overruled in the first instance and in the light of all the evidence viewing the situation fairly, was not of sufficient cogency to require the court to grant a new trial.
We carefully reviewed the facts and the record on the original submission, and it seems to us clear not only that there is no error in the record, but that appellant's guilt is shown substantially beyond doubt or controversy. It is therefore ordered that the motion for rehearing be and the same is hereby overruled.
Overruled.