In his motion for rehearing, appellant urges that he should have been granted a continuance, in order to *Page 483 get the testimony of Annie Ashley. We have given our former opinion careful scrutiny, in the light of the earnest insistence of appellant on this point. We think our announced conclusion was correct that no sufficient diligence in his effort to obtain the presence of said witness at the trial, appears in the record. The indictment was filed September 28, 1918. The trial term of the court below began January 28, 1919, and no process of any character was sought by appellant for said witness, in the instant case, until February 10th thereafter. When the case was called for trial on February 20th, it was postponed for a week, at appellant's request, because of the absence of said witness; and, in fact, the case was not called for trial until March 5, 1919, and notwithstanding his process of February 10th had been returned prior to the calling of the case on February 20th, appellant made no application for additional process for said witness, as appears from his application for continuance, filed on March 5th, in which he sets forth merely the inquiries and personal efforts made by him to locate said witness. This would appear to be insufficient, under all the authorities.
It is now alleged that the absent testimony was mainly material for its bearing on the defense of temporary insanity, and that the statement made by said witness before the grand jury, which is quoted in our opinion, was as to other matters, and did not negative the claim made by appellant in his application, that the testimony of said witness bearing on the question of insanity, would be as set out in said application, and would be material, and likely true. Again, reviewing said application, it therefrom appears that the absent witness would testify that she saw appellant use intoxicating liquor several times, and saw him take two or three morphine tablets on the evening and night of the shooting, and that when he shot deceased he was wholly insane from this use of such liquor and drug. As stated in our opinion, it appears from the statement of this absent witness herself, made before the grand jury, that when the shooting took place, she was "sitting there kinder dozing off, and all at once I heard the shooting and raised up and said "What in the world is that?" According to the testimony of Mrs. Williams, sister of said absent witness, when the gas gave out, she, Mrs. Williams, got out of the car, and was out of the same when the shooting took place, but Mrs. Ashley did not get out of the car until after the shooting. Taking the two together, it is evident that Mrs. Ashley was in the car, but asleep or dozing, when the shooting took place, and knew nothing that occurred after the deceased came up to where the parties were, nor what passed between deceased and appellant until after the fatal shots were fired. As to her testimony regarding the liquor and morphine tablets, it in no way appears different from that given by the other witnesses, and in fact the State did not seem to take issue regarding the quantity or the character of the liquor and tablets used. These *Page 484 facts fully appearing, the only remaining matter expected from said absent witness, would be her opinion as a non-expert witness, as to whether the condition of appellant was that of temporary insanity when the shooting took place. We confess that it does not appear to us sufficiently probable from the record, that said witness would have so testified, or that such testimony, if same should be her opinion and given in evidence, would likely produce a different result, this being the test properly applicable.
Being unable to agree with the contentions urged, the motion for rehearing is overruled.
Overruled.