In his motion for rehearing appellant directs our attention to an error in our original opinion where we disposed of his complaint at the overruling of his application for continuance on the ground that the application contained no averment that the evidence sought from the absent witnesses could not be procured from any other source.
The bill of exception shows that appellant filed a first application for continuance on September 4, 1944. Continuance was denied, but postponement was granted to September 18, 1944, at which time another application for continuance was presented. This was the second application. It did contain the averment that the evidence of the absent witnesses could not be procured from any other source. Continuance was again denied, but further postponement was granted until September 24, 1944. On the latter date appellant filed no formal application for continuance, but renewed his second averring therein as follows: "He here now presents and refiles his application for a continuance of this case with the same provisions, stipulations and grounds therein set forth, and here represents to the court that all of the reasons therein stated exists in the same manner and extent as when said application was originally filed, except as to Paragraphs 14 and 15 which related to the witnesses, Mrs. Howard Dawson and Mrs. Pat Banks, and here makes and renews said application in the same manner as originally filed in this case of this date."
Under our former holdings this might properly be regarded as a third application. It did not contain the averment that the evidence could not be secured from any other source, and that was in our mind when the original opinion was released. However, under the circumstances stated we have concluded that the action of the trial court in overruling the renewed application should be considered. A review of the record reflects that appellant proved by other witnesses every fact he claims could have been proved by the absent witnesses except his claim that Aubrey Williams, Leroy Piner, Jimmie Yarbrough and J. B. Hedrick would have testified that they had prior acts of carnal intercourse with prosecutrix. All of the parties named were soldiers in the armed forces of the United States. None is shown to have been within the State of Texas, and that appellant expected to be able to procure their testimony at the next term of court has no substantial basis. The court's action in denying *Page 352 the continuance may be upheld on various grounds. It was overwhelmingly shown that prosecutrix was under 15 years of age at the time of the alleged offense. Therefore, if the soldiers had been present and had testified as claimed, it would not have presented any defense for appellant's acts, and their testimony, if as claimed, would not likely have brought about a different result. Again, if the absent soldiers had previously had carnal intercourse with prosecutrix with her consent, the acts would make them guilty of rape. They could not have been forced to testify to such act if it would incriminate themselves, unless they had waived their constitutional right to refrain from so testifying. It would be highly speculative to indulge a presumption that they would have waived their constitutional guarantee.
If the court had granted a continuance because of the absence of the soldier witnesses the trial could in all probability have been delayed indefinitely. In Williams v. State, 168 S.W.2d 261, we held that where witnesses were in the Army or Navy of the United States, beyond the jurisdiction of the court, and perhaps on foreign soil, the court was not required to continue the case.
Appellant showed in his application that he undertook to take the depositions of Leroy Piner and Jimmie Yarbrough; that the District Attorney waived time and a commission and agreed that the depositions might be taken immediately. The record discloses that the depositions were forwarded to the County Clerk of Burlington County, Mount Holly, New York. Upon receipt of the interrogatories the clerk wrote to the Clerk of the District Court of Hopkins County, where the case was pending, the following letter, on September 15, 1944.
"Dear Sir:
"We have received your request for depositions for Jamie Yarborough and LeRoy Piner, but we do not know where to locate the same.
"If you can furnish addresses, we will secure these depositions for you and forward them.
"Yours very truly,
"Palmer L. Adams, County Clerk, "By (Signed) Clovis G. Wright, Deputy."
Appellant made no further showing what steps he took to locate these witnesses. *Page 353
The fact that the prosecutrix weighed approximately 130 pounds was proven by her testimony, as well as by that of her mother. The fact that many soldiers would come from Paris and Greenville to Cooper on week-ends; that they would congregate at Jasper Rudy's Cafe; that considerable drinking was indulged in; that argument, fussing and fighting occurred about the cafe during the time that the prosecutrix worked there, was proved by many witnesses. Consequently, the testimony of the absent witnesses relating to such matters would have been cumulative. The trial court was justified in overruling the application under the circumstances.
The motion for rehearing is overruled.