Appellant urges that we were in error in upholding the action of the trial court in refusing to grant his application for a continuance. The matter has been again reviewed. The application appears so manifestly lacking in any showing of diligence that we are not impressed that our holding in this regard was error. Appellant states that he employed an attorney "a few days after he was arrested." This expression is so indefinite as to apprise us of nothing. It might have been any time anterior to the date of trial. The facts stated in said application have been examined by us and compared with testimony given by other witnesses upon the trial, in view of the insistence of appellant's counsel that under the peculiar facts in this case the rigid rules regarding a showing of sufficient diligence, should be relaxed. The absent witnesses were two women. By them appellant expected to show that he went out to Lake Wichita on the night in question about 8:30 and was with said women continuously thereafter in such manner as to make it impossible for him to have committed the robbery in question. A number of apparently reputable and disinterested witnesses testified to the presence of appellant and his codefendant in the town of Wichita Falls and in such positions as to make it plain that their testimony could not be true, if that stated as expected from said two women, was also true. These matters are for the consideration of the trial court in passing upon the question of a continuance when error in refusing same is urged in support of the motion for new trial. The trial court was amply justified in concluding that had said witnesses been present, their testimony would not have been as stated in said application, and in further concluding if necessary, that if they were present and gave such testimony upon another trial, it would not likely be true, or have the effect of bringing about a different result.
We are not able to bring ourselves to agree with appellant's contention that the evidence does not support the verdict. In our view *Page 306 of the matter the State's contentions are amply supported. The fact that the alleged victim of the robbery was a gambler and admitted said fact, would not operate to prevent the jury's belief in the truth of his testimony. The identification of appellant and his companion seems in every way sufficient to justify the jury's belief that they were the guilty parties. The matter is fully discussed in our original opinion.
Being unable to agree with the contentions now urged by appellant, the motion for rehearing will be overruled.
Overruled.
[Opinion reached hands of reporter — October 1922. — Reporter.]