Appellant strenuously insists that his application for continuance was sufficient. The showing made as to diligence went no further than to attach to the motion for continuance copies of two applications for subpoenaes made by appellant, and to state that such applications were made. The indictment herein was returned June 13, 1929. There is no reference in the application for continuance to the date of appellant's arrest, nor to the date of the call of the criminal docket for setting, nor any statement as to when such docket was set. One of the applications for process attached to the motion, shows that it was issued on June 18th, and the prayer set out in same asked that the subpoena be made returnable on the 24th of June. This court is left wholly in the dark as to whether any subpoena was ever issued upon said application, or, if so, what became of such process, to whom delivered, etc. No subpoena is attached to the motion for continuance, nor is there any averment therein that such subpoena was ever issued, or that it was delivered to the sheriff or any other officer. The other application for process attached to the motion is in the same condition. Appellant seems of opinion that the rule requiring some such showing in an application for continuance, is of recent date. In Buie v. State, 1 Texas Crim. App. 455-6, appears the following:
"It has been repeatedly decided by this and the Supreme court that it must be shown what was done with the process obtained for a witness; that it should be made to appear that it was placed in the hands of the proper officer if the witness resided in the county; and if he resided out of the county, then that it was forwarded, and how and when, to the proper officer there. And in either case, if a return of the process has been made by the officer, that fact and the character of the return should also be shown. The better practice, in order to establish such diligence beyond controversy, and *Page 677 certainly the most satisfactory, would be to make the process itself, if returned, a part of the application, as an exhibit.
"Now, for aught that appears in the above motion, it may be true that the attachment was issued, and it may be true that witness was not found by the sheriff of Comanche county, and still it may also be equally as true that defendant retained the attachment in his own possession after its issuance, and that the sheriff of Comanche county did not find the witness because he never had any process which required him to hunt him. See Lewis Murray v. State, decided at the present term, and authorities there cited, ante p. 417."
There has never been any other rule in this State as far as we know. In Atkins v. State, 11 Texas Crim. App. 17, appears the following:
"It is not stated that any effort was made to serve the attachment, nor even that it was placed in the hands of an officer for service. This is not such diligence as the law demands. It is not sufficient to state merely that the process was sued out; but it must be shown what was done with it."
In Cooper v. State, 7 Texas Crim. App. 194, it is stated that the application for continuance must show to whom and when the subpoena was delivered, and when and by whom it was returned, if returned. In Williams v. State, 10 Texas Crim. App. 114, it is stated that the application for continuance must show by what officer the subpoena was issued, whether served or not, and if not served, what diligence was used to procure service. Under Art. 543, subdiv. 2, Vernon's Ann. C. C. P. 1925, appear numerous cases supporting the above proposition. True, the qualification put on the bill of exception by the trial court states that a subpoena was issued for one of the absent witnesses on June 24th, 1929, which was returned June 29th, showing no service and stating that the witness was in Arkansas. If this be considered, diligence would have required that appellant at once take steps to procure the deposition of such witness, which he does not appear to have done. We note also the statement of the court in said qualification that the case was not tried till July 15th, and that during this interim, as the court was reliably informed, the said witness was at his father's home in Morris county, Texas. The former opinion was correct.
The motion for rehearing will be overruled.
Overruled. *Page 678