las county, and of which W. H. Noble was in his favor by N. A. Dawson, who purportforeman, and that appellant "did then and there take his corporeal oath and was duly sworn as a witness before said grand jury, said oath being then and there duly administered to him by the said foreman, who was then and there authorized by law to administer the same, and which said oath was then and there required by law, and was necessary for the ends of public justice, and was administered for the ends of public justice, whereupon it then and there became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal laws of said state and for the ends of public justice, to wit: "(1) Whether said W. D. Alt, in the city of Dallas, in Dallas county, Texas, on the 16th day of June, A. D. 1916, cashed a certain check for and signed by N. A. Dawson; said check being of the tenor following: 'No. 77. Stephenville, Texas, 6/16, 1916. 88-357. Cage & Crow, Bankers (Unincorporated): Pay to the order of W. D. Alt $100.00 one hundred & 00/100 dollars. Bexar Construction Co., Per N. A. Dawson. Cashed for NAD.' "(2) Whether the said W. D. Alt in the month of July, 1916, presented said check herein before described for payment to W. E. Crotty, assistant cashier of the Cage & Crow Bank, at Stephenville, Texas, and whether payment thereof was refused by said W. E. Crotty, assistant cashier, as aforesaid; and the said W. D. Alt did on the 27th day of September, A. D. 1917; in said county and state, before and to the said grand jury, under the sanction of said oath administered to him as aforesaid, deliberately and willfully state and testify in substance as follows, to wit: "(1) That in the city of Dallas, in Dallas county, Texas, on the 16th day of June, A. D. 1916, he cashed said check hereinbefore described for said N. A. Dawson. "(2) That some time during the month of July, 1916, he presented said check hereinbefore described for payment to W. E. Crotty, at the Cage & Crow Bank, at Stephenville, Texas, and that payment thereof was then and there refused by said W. E. Crotty." The indictment, after charging that defendant testified to the truthfulness of both assignments, traverses the truth of both. The indictment was attacked on motion in arrest of judgment, by general demurrer, and specific exceptions. It is contended the indictment does not show a violation of the criminal laws in the matters stated, and that there is no allegation that the grand jury was examining into any particular matter which constituted an offense, nor was that body inquiring of defendant in general terms whether he had knowledge of the violation of any penal offense, or that any questions were asked defendant in regard thereto. The further contention is made that there is no allegation sufficiently showing the materiality of the statement to any matter about which the grand jury was authorized by law to act or investigate. There is no allegation to show they were inquiring about any particular violation of the law, or in general terms whether he had knowledge of any violation of the law. This indictment fails to allege sufficient facts to show the materiality of the testimony about which inquiry was being made. It does allege that appellant testified that he had cashed a check drawn ed to represent a construction company, which check is alleged to have been given in June, and he testified that in July he presented it to a bank in Stephenville, Erath county, for payment, which payment was refused. These matters are alleged to be false. Appellant swore they were true. [2] There is nothing alleged to show how these matters became, or could become, a matter for investigation by the grand jury from a criminal standpoint. The grand jury would have no right to inquire into other matters than violations of the penal law. It is not alleged that this testimony was given in regard to any matter criminal, nor does it allege any fact that would show that it related to any criminal offense. The grand jury is only empowered to inquire into violations of criminal laws of Texas. Upon this subject we cite Gallegos v. State, 50 Tex. Cr. R. 191, 95 S. W. 123; Pigg v. State, 71 Tex. Cr. R. 600, 160 S. W. 691; Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 960; Higgins v. State, 38 Tex. Cr. R. 539, 43 S. W. 1012; Weaver v. State, 34 Tex. Cr. R. 554, 31 S. W. 400. Neither allegation in the indictment shows even indirectly that it was a violation of any criminal law; that is, either to pay the check or to present it to the bank in Erath county for payment and its refusal. Without in some way showing that these allegations could form the basis of a criminal prosecution which would form the subject of an inquiry by the grand jury, that body would have no right to inquire into it. There are other matters in the case that might be of importance, presented by bills of exception to charges asked and refused, and to the introduction of evidence; but as the matter is presented we will not discuss them. The judgment will be reversed, and the prosecution ordered dismissed. (83 Tex. Cr. R. 332) WOODS v. STATE. (No. 4849.) (Court of Criminal Appeals of Texas. May 1, 1918.) 1. CRIMINAL LAW 609-CONTINUANCEHEARING. Although, under Code Cr. Proc. 1911, arts. 612, 613, upon application for continuance, the state may controvert and the court determine accused's diligence, it is not within the court's province on such hearing to pass upon the weight of the evidence accused desires from an absent witness. 2. CRIMINAL LAW 959 - NEW HEARING. sent witness may be looked into on motion for The probable truth of testimony of an abnew trial, in connection with evidence adduced upon the trial. 3. CRIMINAL LAW 595 (3)-CONTINUANCETESTIMONY OF ABSENT WITNESS. testimony of absent witness that prosecutrix had In rape trial, continuance asked to secure taken a man into her room was improperly refused. MORROW, J. This trial was under an indictment for rape charging its accomplishment by force, threats, and fraud upon the person of Ethel Henley. The punishment was fixed at imprisonment for life. The injured party was a young girl who had been in the habit of working for something like a year, and did not live with her family, and at the time of the alleged offense was doing housework for the appellant, who was a barber, and whose family consisted of his wife and children. After prosecutrix was employed appellant bought her some clothes. The house in which they lived contained about six or seven rooms. The injured party slept in a room adjoining that occupied by appellant and his wife. Her testimony shows that appellant came into her room about 12 o'clock at night. She was awakened by his entering the room and she screamed, and he sat down upon the bed and asked if she was scared. She told him to leave her alone, that she was sleepy, and turned her back on him, and he asked her to turn over and talk to him, that he would not bother her. She did not turn over at that time, but later he took hold of her arm and she did turn over. He laid by her a few minutes and put his arm across her didn't want to do wrong. I asked him to go away several times. My limbs were together and he taken his hands and forced them open.' She complained that it was painful, and after he got through he went into the other room and came back, and she asked him for a drink of water. He said he would go and break some ice, and while he was gone she grabbed her clothes and ran, going to a restaurant, and reported the rape. She said she had a sweetheart, and that she talked to him at the gate on the evening before the incident happened. She said that her sweetheart Carson talked to her at the gate, but did not come in the house. Cross-examined she said that she screamed before she knew who it was in the room; that she did not get out of bed; that she could see who it was by at first; later called Mrs. Woods; that she the moonlight; that she did not call any one made no effort to get out of bed; that she knew Mrs. Woods and the two children were in the adjoining room; that she did not call Mrs. Woods, but had the appellant do so; that before Mrs. Woods came she told appellant she did not want to make any trouble between him and his wife, and he said he would call his wife; "I went to crying and he told me if I cried any more he would kill me;" that the reason she wanted him to call Mrs. Woods was she thought maybe she would make him go out. She says she was wearing a nightgown and drawers, and that she unbuttoned the drawers because he threatened her and told her to unbutton them. her if she did not do it he would kill her. He was in bed some five or ten minutes before doing anything, just loving her while he lay there. "He just told me if I didn't do what he wanted me to do he would kill me, while he was lying there loving me." He went out of the room and came back and she saw something in his pocket that resembled a razor. She did not try to get away while he was gone; was afraid to; "didn't make any effort to leave while he was gone; I was afraid he would try to kill me. We didn't do any tussling or fighting there on the bed before I unbuttoned my drawers, it was after they were unfastened. The only force he used was to pull one of my legs over, and he forced me to do it. He started to lay my leg over and I tried to keep him, from opening my leg. I did not try to get out of the bed. I tried to get him out. I took my hands and "I tried to get away from him-and he told me if I hollered or made a racket he would kill tried to push him off. My room is right next me, and he got up and went in the other room to the jail building within a very few feet of and came back. His wife came in directly after it, but I was afraid to holler or say anything. he came in; he got her to come in there. I knew there were men guarding the jail and was crying after he told me he would kill me, and I had him call her. She told me I had it I knew there was another house on the other all to go through with any way and I might as side right close to ours with a number of well go on then. He asked her if she cared and people sleeping in it. I did not try to attract she said no she didn't care. She sat there on the bed a few minutes and talked and then got the attention of anybody. I just tried that up and left. He then pulled off all his clothes is all. When he was taking his clothes off I and had intercourse with me. He forced me to. I was still crying. I did not consent to it. I wasn't doing anything but just laying there. asked him to go and leave me alone; that I When Mrs. Woods went out of the room I breast. She said: I For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes did not try to go out with her or stay with her for I was afraid of him." She said she believed that appellant would carry out his threat. Appellant's wife testified that appellant came home about 5:30 o'clock in the evening, and went back to work, returning about 9 o'clock, his usual hour; that Ethel ate no supper, but during that meal was in the front room talking to a man whom she said was named Carson, and part of the time talked to him at the gate. Witness claims to have invited both of them to supper, and after appellant left Ethel and Carson went into Ethel's room; that Ethel did not wash dishes, which was her duty; that she remained in her room with Carson until about 9:30 or 10 o'clock. Witness said while she was attending to her children about the house she noticed Ethel's door closed and tried to open it and found it locked; that she looked in at the window and saw Ethel and Carson on the bed together in the act of intercourse. She further testified that she became angry and after the man had gone told Ethel she must leave the house the next morning; that Ethel began crying and was crying when appellant came home, and appeared very angry. After appellant came home she began to wash the dishes. Witness claims to have gone to bed with appellant about 10:30 or 11 o'clock; that there were two babies in the room and one of them was sick; that she was not in a good humor and did not go to sleep before the officers came in; and that she knew her husband did not leave the room before that time; that about 30 minutes before that time she heard the gate slam. She claims to have made a statement to the officers the morning after the arrest of appellant in accord with that testified to on the trial. That he was unable to tell how long the hymen had been gone. Appellant made an application for a continuance on account of the absence of Mrs. Harret Bryan. This witness resided in Tarrant county, and a subpoena was issued for her a few days after the indictment was The indictment was filed the 8th of found. August, and the trial begun the 20th of August. The absence of the witness was accounted for by the statement that she was secreting herself to avoid service, but that her absence was temporary, and her testimony could be obtained by a continuance or postponement. By her he expected to prove that she saw the injured party, Ethel Henley, go out into the street, hail a man who was passing, and take him into the room she occupied; that the witness did not know the man; that he remained for some time and did not leave until late that night. The state controverted the motion by affidavit of a witness who claimed that she (Mrs. Harret Bryan) lived near the residence of appellant, and that the affiant had several conversations with her concerning the injured party (Ethel Henley), in one of which Mrs. Bryan had said that she had seen a man standing with the girl at the gate of the house which was occupied by appellant, and later they went in the house together, and the man in a few minutes came out and went away, and some time after that had talked with Mrs. Bryan again and that Mrs. Bryan said she was mistaken about the matter. the case by the affidavit mentioned. The efwas to cast doubt upon the truth of the tes fect of the affidavit controverting the motion [1] This was the first application for a continuance. There was no contest of the diligence. The court qualifying the bill says that the affidavit mentioned above was presented and considered by him along with the application for a continuance, "and the application was thereupon overruled. We understand Several persons testified that they lived from the record that the court was influencnear by and heard no disturbance. The keep-ed to make the order refusing to continue er of the restaurant testified that the girl came to the restaurant, first to the window, and called for help. She was crying and without shoes. She could not tell anything. "He tried to kill me," is all she said. An officer was called. She had her dress in her hand, and said the man tried to kill her. "If I didn't do this, he tried to kill me." She said he had a razor. The county physician made an examination of the girl and testified that in his opinion from the appearance of the vagina she had had intercourse with some one. That she was quite nervous. That the hymen was entirely gone. "That if the hymen had been penetrated that night fragment edges of the ruptured hymen would still be showing there; I think it would, undisputably, but I didn't notice anything like that in this girl. The hymen disappears from different sources. The hymen could have entirely disappeared in an entirely virtuous girl. The absence of the hymen is not of itself neces timony of the absent witness by reason of her having made alleged contradictory statements with reference to the matter. The state was privileged under article 611 to have controverted under oath the diligence set up in the application, and the court might have inquired into the question of diligence thus raised. Articles 612 and 613, C. C. P.; Howard v. State, 8 Tex. App. 53; Hardin v. State, 40 Tex. Cr. R. 208, 49 S. W. 607; Attaway v. State, 31 Tex. App. 475, 20 S. W. 925; Lane v. State, 28 S. W. 202. The diligence being sufficient, however, it was not within the province of the court on the hearing on the application for a continuance to pass upon the weight of the evidence which appellant desired from the absent witness. [2] The probable truth of the testimony of the absent witness may be looked into on evidence adduced upon the trial. State, 55 Tex. Cr. R. 551, 117 S. W. 850, and cases cited. The case of Roquemore v. State, 54 Tex. Cr. R. 593, 114 S. W. 140, is on the facts touching the application for continuance quite similar to this. From it we take the following quotation: Steel v. I sufficient to constitute all that is required. That is Mr. Branch's conclusion from the decisions. Branch's Ann. P. C. § 1782. It is the rule recognized in some of the authorities mentioned by appellant, notably Perez v. State, 50 Tex. Cr. R. 34, 94 S. W. 1036. See, also, Cole v. State, 57 Tex. Cr. R. 51, 123 S. W. 409, 136 Am. St. Rep. 973; Sharp v. State, 15 Tex. App. 185; Sawyer v. State, 39 Tex. Cr. R. 557, 47 S. W. 650. Under the facts and this rule we do not think that the evidence was such as to justify the court in taking it away from the jury. "The state contested said application, not on the ground of want of diligence, but on the ground that the testimony of said witnesses is not probably true. *** We are of opinion that the court would not be authorized, in passing upon an application for continuance, to pass upon the truth of what a witness would testify to on the trial by proving contradictory statements by witnesses. The law of Texas has wisely left the trial of all issues of fact as well as the credibility of the witnesses to a jury, and this court is of opinion that this province of a jury cannot be invaded by the court, and would be establishing a precedent that would ultimately result in confusion and a state of affairs that could not be easily remedied. The application for continuance, we think, shows proper diligence." [3] If appellant could prove by Mrs. Bryan, as he claims in his motion, that she had seen a man go into the house with Ethel Henley and go into her room, it would have been a material fact. Ethel Henley denied that this occurred, and Mrs. Woods affirmed that it took place, and circumstantially that the man Carson had intercourse with the girl on the night of the alleged offense. The fact shown in the affidavit attached to the motion that Mrs. Bryan had afterwards retracted her statement, or changed it, would have gone to the weight of her evidence and to the credibility. The state used as evidence against appellant the fact that some one had had intercourse with the girl on the night in question, and counsel for appellant earnestly insists that the state's evidence fails to meet the measure of the law in the prosecution for rape by force, threats, and fraud, in that there was no fraud practiced, and that the failure to make outcry and the extent of the resistance are not sufficient, citing several cases, as follows: Perez v. State, 50 Tex. Cr. R. 34, 94 S. W. 1036; Arnett v. State, 40 Tex. Cr. R. 617, 51 S. W. 385; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Smith v. State, 56 Tex. Cr. R. 316, 120 S. W. 188; Mooney v. State, 29 Tex. App. 257, 15 S. W. 724; Rhea v. State, 30 Tex. App. 483, 17 S. W. 931; Price v. State, 36 Tex. Cr. R. 143, 35 S. W. 988; Cox v. State, 44 S. W. 157; Rhem v. State, 29 Tex. App. 509, 16 S. W. 338; Rice v. State, 37 Tex. Cr. R. 38, 38 S. W. 801. [5] The appellant's defense, asserting that the injured party had intercourse with another person on the night in question and not with appellant, was, we think, sufficient under the authorities to justify the introduction by the state of evidence supporting the general reputation of the prosecuting witness for chastity. Jacobs v. State, 66 Tex. Cr. R. 146, 146 S. W. 558. [6] The state undertook to lay a predicate on cross-examination of appellant's wife to show that appellant and his wife were married after the birth of one or more of their children. We think that such impeachment of her would have been on an immaterial issue, and one which would have been inadmissible and harmful to appellant, in that it would have tended to burden his case with evidence that he and his wife had lived in adultery before their marriage, a criminal offense in no way connected with that under consideration. This matter as presented in the bill does not make it clear that the impeachment took place. The assignments of error not discussed have been examined, and, we think, present no reversible error. The evidence adduced and the nature of the case are such that, in our opinion, the error committed by the trial court in refusing to continue or postpone the case for the purpose of permitting appellant to obtain the testimony of Mrs. Bryan was material, and requires a reversal of the judgment; which is ordered. 1. HOMICIDE 100-ASSAULT TO MURDER— PRINCIPAL. If, after accused cut prosecutor, accused's brother shot prosecutor to defend accused from attack apparently about to be made by prosecutor, the brother not knowing of the original difficulty and coming upon accused and prosecutor and finding them in controversy, accused would be responsible as principal only for the [4] Our statute (article 1064, P. C.) defines force, and article 1065, P. C. defines threat, as applicable to this offense. The rule seems to be that where, as in this in-cutting, and not for the shooting. rule seems to be that where, as in this in- 2. CRIMINAL LAW 775(2)—ALIBI-INSTRUCstance, threats and force are charged in the TIONS. indictment, and there is evidence of each, In trial for assault to murder, evidence held to require instruction on alibi. TIONS. it is not necessary that either the force or threats alone measure up to the standard 3. CRIMINAL LAW —775(3)—ALIBI-INSTRUCof the statutory definition. The cogency In trial for assault to murder, an instruction which one contributes to the other may be that, if the evidence raises or leaves a reason For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes able doubt as to accused's presence at the scene | fore that night. Just what the relations and of the difficulty at the time it occurred, to ac- situation of the parties were at the time of quit defendant and say by the verdict not guilty, the difficulty is not further described than as was sufficient in form. Appeal from District Court, Edwards County; James Cornell, Judge. Tomas Soria was convicted of aggravated assault and battery, and appeals. Reversed and remanded. Will A. Morriss, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant, under an indictment charging assault to murder, was convicted of aggravated assault and battery. The difficulty occurred at a Mexican dance in a schoolhouse. The alleged injured party, Apalonia Gloria, testified he heard a tapping or knocking on the north wall of the schoolhouse and left the dancing room to see what it meant. When he reached the place he urged the parties to cease such knocking; that appellant cut him with a knife; that he stooped to reach for a rock and as he did so appellant's brother shot him. He testified this difficulty occurred at the northwest corner of the schoolhouse, perhaps a little east of the northwest corner, along the north wall. His wife testified that she was sitting on a bench on the west side by a window out of which was broken a pane of glass, and that the difficulty occurred near the southwest corner of the house. She admitted, however, that she was only testifying as to what her husband told her about it. The injured party, Gloria, testified that he was not drunk, but had taken several drinks, and had a bottle of whisky in his overcoat pocket in the dancing room. The other witnesses who testified in regard to it stated that he was very drunk; especially the sheriff and doctor who attended him almost immediately after the difficulty. The doctor testified he was too drunk to make a coherent statement. Other witnesses testified that the pane of glass was not broken out of the window mentioned by the wife of the assaulted party. The defendant testified that he was in the house at the time of the difficulty, took no hand in it, and knew nothing about it, except he heard a pistol shot on the outside north of the house. He also testified that his brother was in the dancing room at the time of the trouble; that he did not own a knife or a pistol. The two brothers spent the night at another Mexican's house after the difficulty, and the next morning the sheriff came early to arrest them and examined the room where they slept, as did the owner of the house, and found neither a pistol nor a knife upon the person of appellant, but on the brother they found a small penknife. There are no details as to how the difficulty came up except as stated. The parties were strangers to stated. [1] The court charged upon principals both from the cutting by appellant and shooting by his brother. The evidence is very meager in regard to this proposition. The knife wound was in front and the pistol shot entered from the rear. This formed. the basis for a charge on principals. We are of opinion that, if upon another trial the court should charge with reference to principals, he should give the converse of the proposition. This testimony is very meager indeed, and does not show, outside of the testimony of the state's witness, how the matter came. There were a number of people outside of the dance hall at the time of the trouble. If the assault was made as indicated, and the two were acting together for the purpose of doing what they did, or if they were aiding and encouraging each other in the assault, the question of principals would be suggested, but it is equally as true if they were not, and that the brother, if he shot the pistol, did so to defend the other brother from an apparent attack about to be made by Gloria with a rock, he not being a participant in the original difficulty and coming upon the parties and finding them in that relation, he would not be considered a principal. If he did this, then the question of self-defense would be in the case in favor of the brother who shot the pistol in defending his brother from an attack, or an apparent or contemplated attack, by Gloria. Where the testimony is so uncertain and erratic as that disclosed, we are of opinion that, if a charge on principals is given, the converse of it should also be given. As given, it made appellant responsible as a principal for the shooting by his brother. If he made the first attack without having an understanding with his brother, and it was not a joint attack of the two, then he would only be responsible for the use of the knife. See Guffee v. State, 8 Tex. App. 187. [2] Proper exceptions were reserved to the charge of the court with reference to giving the law of principals, and also to the court's failure to charge on alibi and refusal to give requested instructions presenting this theory of the law. We are of opinion that the charge on alibi should have been given. If he was in the house at the time of the difficulty, he could not have been a participant in the difficulty, and therefore was not present. See Colbert v. State, 52 Tex. Cr. R. 486, 107 S. W. 1115; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087; Walker v. State, 6 Tex. App. 577. [3] There is some suggestion that the requested instructions on alibi were not sufficient in using the following language: After setting out the usual stereotyped form that |