DISSENTING OPINION ON MOTION FOR REHEARING Appellant moves for a rehearing because of the absence of Jess Sayers, for which cause an application for continuance was made. The appellant was arrested in June 1928 for the offense herein alleged to have been committed, was indicted on October 11, 1928, and on October 15th of said year caused a subpoena to be issued for said Sayers. When the same was returned nowhere appears in this record. Sayers was not served. The case was tried on October 29, 1928, at which time the application for continuance was made and overruled. Examining same we observe that appellant swore therein that about fifteen minutes before his arrest by the sheriff for the alleged possession of five kegs of whisky in his car, that Sayers looked over said car, opened it up, looked in the back carefully and there was no kind or quantity of whisky in said car. The application further states that immediately afterward appellant and Sayers separated and appellant got in his car and without stop of any kind drove to where he was arrested by the sheriff some ten minutes thereafter. *Page 44
On the trial of the case the sheriff of the county testified that in the forenoon of June 7th and just before dinner he arrested appellant about two miles from Paducah with five kegs of whisky in the back of his car. He said that during the morning before this he had seen appellant on foot in Paducah on the street west of the square, at which time appellant went north to the street leading west and up that street. Appellant took the witness stand and swore that when he got to Paducah on the morning of June 7th he parked his car a block west of the square at a filling station. He further said: "When I got out of the car there, I talked with Jess Sayers," and further testified that he tried to sell Sayers his car; that Sayers examined the car and that there was no liquor in it. Appellant further testified that he met the sheriff that morning on the street a little north of Campbell's barber shop, and the sheriff did not then arrest him or say anything about arresting him. He further swore: "After I saw him I started west, — first north and then west to my car." These facts are now set out as in line with and support of the proposition advanced in the original opinion, viz: that the State made no claim that appellant had whisky in his car when he got to Paducah on the morning of June 7th, the day on which he was later arrested on the Lubbock road some two miles from Paducah with five kegs of whisky in his car. Appellant produced Finley and Worley who testified for him that they saw in his car at a point three miles from Paducah as he came toward the town that morning, and that he had no whisky in his car. His complaint now is of the refusal of the trial court to continue the case to get Sayers, who would swear that he looked in appellant's car in Paducah at once upon appellant's arrival at said town and saw no whisky. It is not stated in the application for continuance that Sayers would testify that at once after he examined the car, appellant got in it and drove off on his way to Lubbock. In fact and in the light of the testimony of appellant himself, it is plain that if Sayers did look in the car at all, it was at once upon appellant's arrival at the town of Paducah. As substantially stated in our former opinion, — testimony that appellant had no whisky in his car three miles from Paducah as he came in that morning, and that he had none when he first got to said town at the time when he testified Sayers looked in his car, — would in no real sense conflict with testimony of Sheriff Payne that when he arrested appellant about noon two miles from Paducah the latter had kegs of whisky in his car. Nor would such testimony conflict with that of Mr. Woods who testified when he went home to dinner on *Page 45 the day in question he saw Sheriff Payne and appellant drive up and take five kegs out of appellant's car.
The matters in the application for continuance were for the trial court to consider in the light of the facts developed on the trial of the case. No process for Sayers was asked after the subpoena issued on October 15th. The burden was on appellant to show diligence.
Neither from the standpoint of diligence nor materiality of the absent testimony can this court conclude a trial court in error in refusing the motion for new trial based in part on the overruling of the application for continuance, unless there appear affirmative error. Unless we believed the discretion of the learned trial judge in such matters abused, we should not reverse. I am unable to bring myself to believe there was such abuse, and respectfully dissent.