In a vigorous motion for rehearing appellant attacks the correctness of the disposition of his complaint at the refusal of a second continuance, and the subsequent overruling of his motion for new trial predicated on such refusal. *Page 82
Appellant seems to think our disposition of the question originally turned upon the fact that appellant had not secured process for his wife but was relying only on her promise to be present. It was not our intention to leave such an impression, in view of authorities to the contrary. The question was disposed of upon the ground that considering the case in its entirety after having heard all the evidence in the case the trial court was justified in denying the new trial in so far as it was predicated on the refusal of the second application for continuance. Appellant, however, urges that we were wrong in such holding in view of the fact that an affidavit of the wife that she would have testified as set out in the application was attached to the motion for new trial. The contention here made by appellant is the precise point urged in Wiley v. State,117 Tex. Crim. 449, 36 S.W.2d 495, reliance being on the opinions in White v. State, 90 Tex.Crim. Rep.,236 S.W. 745; Cruz v. State, 100 Tex.Crim. Rep., 272 S.W. 486; Tubb v. State, 109 Tex.Crim. Rep., 5 S.W.2d 150, and others of similar holding. All of the cases referred to were considered while Wiley's case was under submission. In the opinion on rehearing in the latter case, after reference to many former cases, is found the following statement:
"We are of opinion that the rule laid down in this regard by our predecessors should be adhered to by us, and that when an application for continuance is overruled, and the fact of such refusal is made a part of the ground of the motion for new trial, that such new trial should not be granted unless this court, reviewing the case within its appellate jurisdiction, is satisfied that the action of the trial court in overruling of such motion for new trial amounted to an abuse of his discretion in determining in the first instance that, had the absent testimony been present on the trial, no different result would have been likely."
In Barfield v. State, 118 Tex.Crim. Rep.,43 S.W.2d 106, the same question was again presented and Wiley's case followed, the language in Barfield's case being as follows:
"We cannot bring ourselves to believe that under the whole case the trial court can be said to have abused his discretion in overruling the motion for new trial based upon his refusal to grant the continuance. This subject was discussed at length in the recent case of Wiley v. State (Texas Crim. Rep.),36 S.W.2d 495, and many of the older cases were reviewed and cited. We cannot believe it reasonably probable that if the absent testimony had been before the jury a verdict more favorable to appellant would have resulted." *Page 83
Such is the effect of our holding in the original opinion in the present case. See also Fox v. State, 119 Tex. Crim. 552,43 S.W.2d 951; Johnson v. State, 128 Tex. Crim. 12,78 S.W.2d 965; Myres v. State, 129 Tex. Crim. 468,88 S.W.2d 109, all of which followed the Wiley case (supra).
Again considering the entire record we conclude that appellant's motion for rehearing should be overruled and it is so ordered.
Overruled.