Appellant has filed an able and forceful motion for rehearing. Carefully reviewing the grounds presented therein and from an examination of same and upon more mature consideration of our opinion holding that the application for a continuance did not show sufficient diligence, we have become convinced that we were in error in such holding. It is not necessary to review the matter at length, but we will state that after a copy of the interrogatories for a non-resident witness had been served upon the attorney for the State, it was discovered that the indictment then pending was fatally defective. It appears from the record that a new indictment was returned into court only three days prior to the time of trial. It must be evident that had interrogatories been filed after a correct indictment was presented, the depositions of the witness living in California could not have been obtained. It is made to appear that there was an agreement between the State and counsel for appellant that the deposition taken in answer to interrogatories filed while the defective indictment was pending, might be used on behalf of appellant. Upon a careful review of the facts set up in the affidavit of appellant's attorney, which was not controverted, we have become convinced that under the facts of this case, diligence was used and that we were in error in holding that the first application for continuance should not have been granted. So believing, the judgment of affirmance is set aside, and the cause will be reversed and remanded.
Reversed and remanded.
ON REHEARING. February 21, 1923.