Appellant in his motion for rehearing in this cause assigns but three grounds, the first being that the evidence is insufficient to convict, in that he contends there is no corroboration of the girl's testimony as to the promise of marriage. He seriously contends the following sentence in the original opinion is erroneous: "If corroborated as to this, it is from circumstances alone, such as he had frequently visited her at her mother's
home, and had called to see her when she was staying at Mr. Mann's, prior to the time they, in company with others, went to the negro meeting." Appellant says: "If the State had shown such a state of facts as this, then corroboration would be shown, but we insist the court erred in such finding as to the facts." Appellant then contends all these visits were after the first act of intercourse. Appellant's counsel must not have read the record we have before us. By this record alone we must be governed. The first act of intercourse is shown both by the testimony of the girl and that of appellant to have occurred on the 3rd day of May, 1915, the night appellant and this girl went to the church in company with his mother and others. The sister of the girl testified: "During the fall of 1914 and the spring of 1915 he (appellant) visited at our house. He would come over once a week and sometimes twice a week. He would average coming about two or three times a week. He directed his attention to Eda Bell (the alleged seduced girl) and his conversations were with her."
To the same effect is the testimony of Mrs. Castleman, and Mr. Mann testified that while Eda Bell stayed at his home appellant came to see the girl and no other man visited her. This testimony evidences that appellant called on the girl in 1914 and the spring of 1915, while the girl was at home and at Mr. Mann's, and the act of intercourse did not take place until in May, 1915, as testified to by both of them. Under such state of facts appellant says that under the record in this case he would admit corroboration, and such is the record we have before us, approved as a statement of the evidence introduced on the trial.
His second contention is that as he demurred to the evidence when the State rested, we should pass on the sufficiency of the evidence at that time to sustain a conviction and not take the record as a whole. Such is not the law, but we must consider all the evidence adduced on the trial in passing on that issue on appeal. *Page 20
The third and last contention is that we erred in holding there was no error in overruling his application for a continuance. The girl testified she was only sixteen when the case was tried, and this led us to say that she would have been under fifteen at the time he stated he expected to prove certain facts by King and Rathburn in his motion for a continuance. Having our attention called to when she testified she would be seventeen, we want to say that perhaps we were in error in making the statement she would have been under fifteen at the time alleged. But we did not sustain the action of the court in overruling the motion for a continuance on that ground, but for lack of diligence in suing out process. Appellant again insists that we erred in stating that appellant's father testified process was issued for the witness King at the prior term of court. Again appellant must not have read the record we have before us. Appellant's father testified he went to see King, and the record shows that King left for "parts unknown" the next day. Appellant's father testified that on the following "Monday he had a subpoena issued for King." It is true he says he was not instrumental in having King leave the county, but, nevertheless, his evidence makes it plain that a subpoena was issued for King at the preceding term of court at which this case was tried and it then ascertained King had left McCulloch County. By exercise of the least diligence appellant could have learned that King was not in McCulloch County and had not been there since September. Having another subpoena issued for the witness to McCulloch County three or four months after that term of court and just before this trial would not be the exercise of reasonable diligence on his part. The record disclosed that King was out of the State and had been for some time, and there is nothing to indicate when he would come back into the State, if ever. As to Rathburn, he left McCulloch County "rather hurriedly" some six months before the trial, and appellant nor any other person, so far as this record discloses, had been able to locate him from that day until the date of the overruling of the motion for a new trial. Appellant can not contend that he made any showing that he would ever be able to secure the attendance of either of the witnesses named.
The motion for rehearing is overruled.
Overruled.