62 S.W. 750


MYERS
v.
STATE.


Court of Criminal Appeals of Texas.
April 24, 1901.

Appeal from district court, Freestone county; L. B. Cobb, Judge.

Joe Myers was convicted of rape, and he appeals. Affirmed.

Anderson & Anderson and W. B. Moses, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the offense of rape, and his punishment assessed at seven years' confinement in 
the penitentiary.

The record contains but one bill of exceptions, and that is to the action of the court overruling the 
application for continuance. This bill shows that it was the second application, and it fails to state the 
statutory requisites of a second application for continuance, because it does not state that the testimony
cannot be procured from any other source known to the defendant, or that defendant has reasonable
expectation of procuring the same at the next term of the court. Article 598, Code Cr. Proc.; Sims v. State 
(Tex. Cr. App.) 45 S. W. 705; Smith v. State, 22 Tex. App. 316, 3 S. W. 684. The application appears to have
been oral. The

Page 751

court did not err in refusing this application for the reasons stated; and, further, the explanation of the
court appended to the bill shows that the testimony was not probably true in the light of the evidence.

In the motion for new trial complaint is made of the failure of the court to arraign defendant, and that he 
was not awarded a special venire. In the absence of a bill of exceptions, we cannot review these matters. 
See Acts 25th Leg. p. 11. Appellant strenuously insists the evidence does not support the verdict. Defendant
admits the carnal intercourse, and admits being armed with a pistol at the time, but insists the act was 
with the consent of the prosecutrix. This latter fact is denied by prosecutrix, and she states that she 
submitted to the carnal intercourse through fear produced by threats on the part of appellant. The jury have
passed upon this issue, finding appellant guilty, and we see no reason for disturbing their verdict. The 
judgment is affirmed.