On a former day of the term the judgment herein was affirmed. Appellant urges error in the opinion in overruling, among other things, the application for a continuance. It is contended that the court was in error in stating that the absent testimony was cumulative. The writer has reviewed the case with some degree of interest. The urgent and courteous manner in which the application is presented is commended. If it be conceded that the testimony is not cumulative, the question as to want of diligence is not to be questioned. The writer is of opinion still that the evidence may be regarded as cumulative, but under the view taken in the former decision and now taken it is a matter of not much importance. It was not the real basis of the ruling of the court with reference to the application. It was but an incidental statement as will be observed in reading the original opinion. The want of diligence was a fatal question to appellant's contention that the overruling of his application was error. There was not sufficient diligence to obtain the presence of the absent witnesses. This killing occurred on June 19, 1915, at a negro celebration where there were a great number of negroes *Page 297 assembled in honor of their emancipation day. The indictment was returned by the grand jury on the 12th of the following July. There was a trial of the case resulting in a conviction, followed by an appeal to this court in which a reversal was awarded.78 Tex. Crim. 141, 180 S.W. Rep., 277. These matters are mentioned to show that the case was before the court from the return of the indictment until the refusal of this application some time in January or early in February, 1917. Process was not issued for these witnesses, so far as the record shows, at any time until January, 1917. There is no reason given or stated in the application why process was not issued earlier unless it be the statement that the present counsel were not engaged in the case until subsequent to the former appeal and reversal. It would seem from this that the lawyers who originally defended had passed out of the case. Conceding all the commendable diligence on the part of present counsel in working up the case and ascertaining the facts, still this would not account for want of diligence on the part of the defendant since the return of the indictment to secure the presence of the witnesses. This was not a first but a subsequent application. The statement of facts shows that at the 19th of June celebration there were quite a number of negroes in and about the grounds and that many of these saw and heard the incidents that led up to the tragedy and heard much that was said. Some of the testimony stated in the application was known to other witnesses; at least it reasonably so appears from the record and the statements in the application. For instance, the witness Will Roberts, who was alleged to have left the County of San Augustine and gone to Milam County, would have testified to facts and statements that occurred in appellant's presence and between Perkins, the deceased, and appellant's father. This statement in regard to this particular matter is that appellant was talking to his father when the deceased, Perkins, came up and struck him or slapped him. Appellant's father is not accounted for and did not testify in the case, and so far as this record is concerned no process issued for him. This is mentioned incidentally. Appellant being a participant in these matters which led to his killing Perkins, knew of these things and knew they were said and done and occurred in the presence of quite a number of witnesses, and yet no diligence is shown until this application. The accused must use reasonable diligence to secure the attendance of his witnesses, and we are of opinion that this was not done by him, and no reason is given as an excuse for failing to use this diligence. We deem it unnecessary to notice the other matters.
The motion for rehearing will be overruled.
Overruled. *Page 298