Appellant by and through his attorneys, has filed a motion for rehearing herein. His first assertion is in substance that this court "erroneously stated in the original opinion that the trial was had on August 9, 1911, and that the application was overruled on the 7th, and that in order to substantiate this statement in the original opinion it is necessary to overrule all former opinions of this court which hold that the bill of exceptions is conclusive as to what was done and that the court will not look to the record to supply a bill of exceptions; and that the bill, in plain language, states that the application for a continuance was overruled by the court and he was forced to trial on August 7, and to hold that the date of the judgment should be more conclusive than the bill of exceptions would be to establish a new rule unheard of in this court and unsupported by any authority." He states, and the record, without any doubt shows, that while his application for a continuance was filed and overruled and he forced to trial on August 7, the trial only began that day and was not concluded until on the 9th, lasting three days, so that even if the trial did begin on the 7th, as it continued until on the 9th under the authorities *Page 645 it is the same in effect as it was on the 9th, for he had till then to procure and introduce his witnesses.
It is noticeable that while these broad assertions are made by appellant in his motion for rehearing, no case, and no authority, is cited to support them, for the simple reason that there is no such authority and no such case. No former opinion of this court is overruled, modified, or qualified by the original opinion herein rendered, nor is it in conflict with any previous opinion of this court. No new rule is established and the decision heretofore rendered is supported by all the authorities, statutory and decisions, from this State.
This court has never done the foolish and absurd thing of reviewing the overruling of an application for a continuance as an abstract and isolated proposition. On the contrary it has been the uniform and universal rule in reviewing the overruling of an application for a continuance to consider in connection therewith the whole record and the whole statement of facts. And it has been the uniform and universal rule of this court not to review the overruling of an application for a continuance or reverse a case because it was overruled in the lower court where there is no statement of facts, for the plain, simple reason that without a statement of facts and the record in connection therewith, this court can not tell whether the application was erroneously overruled, nor the merits of the grounds set forth therein, nor whether it was sufficient, nor whether or not the evidence was materials or probably true. The statute, article 608 Code Criminal Procedure, subdivision 6, expressly states that "the truth of the application as well as the merits of the grounds set forth therein and its sufficiency shall be addressed to the sound discretion of the court and shall not be granted as a matter ofright." Then again, it expressly provides that where an application has been overruled and the defendant convicted, a new trial shall be granted if it appear "that the evidence of the witness named in the application was of a material character and that the facts set forth in said application were probably true." This court, through Judge Hurt, in Mitchell v. State,36 Tex. Crim. 299, in discussing the diligence used to procure witnesses, among other things, said: "When the case was called for trial, it was three or four days before the evidence closed in the case, and yet no effort is shown in the application to obtain the attendance of said witnesses. We reasonably presume that, if they lived in the county, their attendance could have been secured by any reasonable effort on the part of appellant before the close of the testimony."
Again, in the same case, in considering a motion for rehearing, discussing the same question on page 307, he said: "It will be further observed that, although the trial in this case lasted four or five days, no effort was made to procure the attendance of any of the absent witnesses after the trial began. For aughtthat appears, by the use of reasonable diligence, they could havebeen obtained in time to have testified in the case. Counsel, however, insist that on the overruling *Page 646 of his motion for a continuance he was not able to do any more in the way of diligence, and, no matter if said witnesses were accessible, and could have been produced, that upon the overruling of his motion for a continuance the case was, as to that matter, in statu quo, and this court could not look beyond the time of the overruling of the application for a continuance as to the question of diligence. The statute places it in the discretion of the court to overrule a motion for a continuance, and then to reexamine the question on motion for a new trial, and to refuse a new trial, unless it should appear that the absent testimony was material, and probably true. And we hold that it isperfectly competent for the court to look to the action of theappellant and his counsel after the overruling of a motion forcontinuance in passing upon the materiality or probably truth ofthe absent testimony. Suppose, in a trial of this character, counsel were informed by the court that the witness was in town and could be had, and counsel should decline to ask for process to bring the witness before the court, or suppose that afterwards (as in the case of the witness Chancery) he should actually come into court, and appellant should decline to use him, would not the court be compelled to hold in such case that appellant was trifling with the court, that the witness would not swear what was alleged, or else appellant did not regard the testimony as probably true? Such occurs to us to be the inevitable conclusion."
It is conceded and admitted by appellant that the trial began on August 7 and that the verdict of the jury and judgment thereon were not rendered until some time on the 9th. So that the trial of the case consumed the 7th, 8th and 9th days of August. Article 718, Code Criminal Procedure requires that if it appear necessary to a due administration of justice "the court shall allowtestimony to be introduced at any time before the argument of thecause is concluded." We judicially know where the respective counties are situated in this State and where and how they are situated with reference to one another. It is the opinion of the writer that we also judicially know the county seats of each of the counties of this State and the location of the railroads with reference thereto. And we judicially know that the county seat of Knox County, where this trial occurred, and Abilene, the county seat of Taylor County, where the absent witness is alleged to have been, are connected by railroads and that they could not be much more than about 100 miles apart, or a reasonable distance in addition to 100 miles. Chamberlain on Modern Evidence, section 743; Missouri, K. T. Railroad v. Lightfoot, 106 S.W. Rep., 395; Carson v. Dalton, 59 Tex. 500; Whitener v. Belknap, 89 Tex. 273 [89 Tex. 273]; 2 Willson's Texas Civ. App., section 679; 3 Willson's Texas Civ. App., sections 188 and 163; Stewart v. State, 31 Tex.Crim. Rep.; Satterwhite v. State, 6 Texas Crim. App., 612; McGill v. State, 25 Texas Crim. App., 512; Boston v. State, 5 Texas Crim. App., 385; State v. Jordan,12 Tex. 206. *Page 647
But we do not have to rely upon our judicial knowledge of these facts for, as said by this court, through Judge White in Buie v. State, 1 Texas Crim. App., 456: "With regard to the other portion of the application, so far as it concerns the witness Kennedy — viz.: that affiant learned two or three days ago that witness resided in Bell County — the statement is too indefinite. It does not show that he used any efforts, and, if so, what, to ascertain the whereabouts of the witness' residence. And itshould have shown, if such was the fact, that, after learning theresidence of the witness, the distance between his residence andthe place of trial was so great that it was improbable, if notimpossible, to have secured service of the process and hisattendance. For aught that appears, `two or three days' mighthave been amply sufficient, with the use of proper diligence, tohave had the witness brought from his place of residence to theplace of trial."
Again, the Supreme Court, when it had criminal jurisdiction, in Townsend v. State, 41 Tex. 135, said: "If it be regarded as an attempt to excuse the want of diligence, it fails to show that, after the discovery of the place where the witnesses were to be found, there was not sufficient time to have the attachments served. For aught that appears, ten days or two weeks may have been ample time for that purpose. In applications addressed to the discretion of the court it must clearly appear that the continuance was improperly refused before the judgment will be reversed. (Lewis v. Williams, 15 Tex. 47; Trammell v. Pilgrim,20 Tex. 160; Burrell v. The State, 18 Tex. 729 [18 Tex. 729].)"
Again, this court, through Judge Willson, in Barrett v. State, 18 Texas Crim. App., 67, said: "An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, or such facts as will excuse the use of diligence; and it must appear that all the means provided bylaw were resorted to by the defendant to obtain the testimony,and were resorted to promptly, or that facts existed whichexcused him from exercising such diligence."
Again, Judge Willson for this court, in Walker v. State, 13 Texas Crim. App., 647, said: "We know of no rule of law which requires the State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show affirmatively and distinctly that he has used all the diligence to obtain his witness required by law."
Again, this court, in Massie v. State, 30 Texas Crim. App., 67, through Judge Davidson, said: "Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption when indulged will and must be in favor of the rulings of *Page 648 the court in reference to the matter complained of, and not against same."
Again, this court, in Long v. State, 17 Texas Crim. App., 129, said: "The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. . . . The burden is upon the party seeking a continuance to show himself entitled to it, by definite, exact and certain averments."
Again, this court in Skipworth v. State, 8 Texas Crim. App., 139, said: "The law requires of a defendant a rigid compliance with the exact terms prescribed for such application, and if there is a lack of diligence apparent from the application orotherwise, its mandate is inexorable and the trial must proceed."
In this case it is unquestionably shown that the appellant learned on August 6, Sunday, that the witness whose testimony he sought, was at Abilene, Texas. He applied for no process and had no process issued for him on that date. It is not shown that he undertook to communicate with the witness to secure his attendance in any way whatsoever. That he merely applied for process for the witness on the next day, August 7, but that he had no process whatever issued for the witness on that day or any other day. That while the trial began on August 7, it was not concluded until August 9. What time of the day on August 9, we do not know. We must presume, under the authorities, that it occurred in the evening of that day. We have not a particle of doubt but that if process had been issued on either the 6th or 7th and promptly placed in the hands of the proper officer of Taylor County for said witness that he unquestionably could have procured his attendance so as to have testified either on the 8th or 9th days of August. Again, the record shows that the complaint and information in this case were filed against appellant on August 1, 1911. The record does not show when he was arrested; but not only from all the facts of this case, as the record clearly shows, but as he has not stated it otherwise in his application, under the authorities, we assume that he was at once arrested. In his application he says: "That at all times since this defendant has been charged with this offense he has been trying to ascertain the whereabouts of the witness; that this defendant never learned that said witness was in Taylor County until yesterday, which was Sunday the 6th day of August." The mere statement by him that "he has been trying" to ascertain the whereabouts of the witness is wholly insufficient. He must state the facts so that the court can tell whether his conclusion that he "has been trying" is correct. Of whom did he inquire? In what locality did he inquire? What day or days of the said time did he inquire, or seek to ascertain the location of the witness? From all the facts shown by this record, we are certain that the proper inquiry at the proper time and place for this witness would have given appellant the information in ample time to have secured his attendance. It was shown that the witness had lived in the county in a certain town *Page 649 therein; that he was a barber. Doubtless his associates in the town and with whom he had worked, and his customers, if they had been applied to, could have readily, promptly and at once have given appellant the information of his whereabouts. Besides, if he had had process to Knox County, where he had lived issued, "when he was charged" with this offense, and placed in the sheriff's hands, doubtless the sheriff at once would have located, and appellant could have procured his attendance. The letter the witness is claimed to have written, is dated on August 2 and bears evidence in its face that the witness then knew of the prosecution in this case. He states in the letter that in about a week from that time he will be discharged from said sanitarium. Certainly if appellant had been as diligent to secure his attendance as he is insistent now, he could have been had as a witness without question before the trial began, or at least within the time the trial was pending, so as to have testified.
Appellant states in his motion for rehearing that an examination of the cases he cites will disclose that the diligence used in this case is much greater than the diligence used by the appellant in the cases he cites. He then proceeds to copy the long list of cases from subdivision 417, p. 422-3, of Buckler's Digest, but he nowhere and in no way attempts to show by any or either of these cases the diligence used nor that it was only such as used by him in this case. By searching the books he doubtless could have found a great many other cases and cited them where the diligence in them was shown to be sufficient, but we apprehend that in none of them was the lack of diligence so apparent and so clear and so unquestioned as the lack of diligence in this case. On the other hand, if we deemed it necessary we could cite a much larger number of cases than he copies from Buckler's Digest showing that such lack of diligence as is clearly evident in this case did not entitle the party to a continuance.
Again, appellant contends that the part of the original opinion in this case which "insinuates" that appellant is compelled to see that the process for his witnesses is issued by the clerk and delivered to the sheriff, is not the law of this State in any case, and all that is required by the law of appellant is for him to make his application to the clerk and inferentially if not directly he contends, then it becomes the duty of the clerk and the sheriff or some one else to do the rest.
The quotations from the opinions of some of the cases above, clearly show the reverse of appellant's contention. All of the authorities so hold. It is true he can not issue the process, but it is his duty to see that the clerk at once does so. It is also true that he can not serve the process, but it is his duty to see that it is at once placed in the proper officer's hands, and that that officer actually and promptly executes the process or by his return show he can not do so. This court, through Judge Ector, in Cantu v. State, 1 Texas Crim. App., 404, said: "The affidavit for continuance does not state the officer or person to whom, or at what time, said subpoenas were delivered. *Page 650 For aught that is shown from the record the subpoenas may have been received by the person who returned them on the very eve of the trial . . .
"This court, in the case of Murray v. The State, ante p. 174, and in the case of Dill and Rice v. The State, ante p. 278, has decided that it is not a sufficient showing for a continuance for a defendant to state in his application that he has had an attachment issued for a witness by whom he could prove material facts in his defense, without stating the date when the same was issued, and the officer to whom it was delivered, and at what time it was delivered to him. See also the cases of Townsend v. The State, 41 Tex. 135; Van Brown v. The State,34 Tex. 186.
"In applications addressed to the discretion of the court it must clearly appear that the continuance was improperly refused before the judgment will be reversed. Nothing is to be presumedin favor of an application for continuance, but the presumptionmust be that the party making it stated his facts as strongly ashe could."
Again, in Buie v. State, 1 Texas Crim. App., 455, this court, through Judge White, said: "It has been repeatedly decided bythis and the Supreme Court that it must be shown what was donewith the process obtained for a witness; that it should be madeto appear that it was placed in the hands of the proper officerif the witness resided in the county; and if he resided out ofthe county, then that it was forwarded, and how and when, to theproper officer there." It is needless to cite or quote other authorities.
Of course, if the diligence used was insufficient under the law, then appellant was not entitled to a continuance and the court did not err in overruling it, it makes no difference what the witness would have sworn, nor whether his testimony was true, or not, nor whether the jury would, or would not have believed him. But appellant contends in effect that this court has no right to review the case and the evidence and to reach the conclusion that the testimony of the witness, even if it had been as claimed by appellant, was not probably true and would not have been believed by the jury. The spirit and the effect of the statute itself is the very reverse of this and so are all the decisions. The statute, Code Criminal Procedure, article 608, subdivision 6, expressly states the truth of the application shall be addressed to the sound discretion of the court and shall not be granted as a matter of right. And that where the defendant is convicted and the evidence of the absent witness was of a material character, and that the facts set forth in said application were probably true, then a new trial should be granted. Necessarily under this statute and all the decisions, the lower court must first pass upon, not only the materiality of the testimony of the absent witness, but the probability of its truthfulness, and if he denies a new trial, then this court must necessarily pass upon the question as it universally does. So held Judge Hurt in Mitchell v. State, 36 Tex.Crim. Rep., quoted supra, and as *Page 651 said by Judge Davidson for this court in Wilkins v. State,35 Tex. Crim. 528: "The testimony of Dean, as set out in the application for a continuance, is material. But in passing upon the action of the court in overruling the motion for a new trial based upon this matter, we look to the fact as to whether the testimony was probably true. After reading the statement of facts carefully, we are of opinion that, if Dean had been present, no juror would have believed him if he had testified to the facts set out in the application. The testimony in the case, and all of the circumstances, and the quasi confession of the defendant, render it absolutely certain, to our minds, that his testimony is not probably true; and the court did not err in refusing to continue the cause."
It is unnecessary for us to again review the testimony, which shows, first, that in our opinion this witness would not have sworn to what the application claims he would have sworn to; second, that if he had, his testimony would probably not have been true; and third, if he had sworn it, it probably would not have changed the result of the trial. For further authorities see section 647, subdivisions 1 and 2, White's Ann. Code Criminal Procedure, pp. 414 and 415.
The term of court at which this trial occurred did not adjourn till September 2, 1911. Appellant did not appeal, nor enter into recognizance till August 30, 1911, 21 days after the trial concluded. He did not procure the affidavit in aid of his motion for new trial, or otherwise that said absent witness would testify what appellant said he would.
There is nothing else in the motion for rehearing that calls for any discussion, further than was said in the original opinion.
The motion is overruled.
Overruled.