Responding to appellant's motion for rehearing, we have again examined the affidavit for search warrant; the original being sent up with the transcript herein. The same not only described the premises to be searched, but sets out that same is a place where whisky is manufactured and sold in violation of the law, by appellant, and this is signed by two affiants and sworn to before a justice of the peace on February 19, 1931. In our judgment it is sufficient to form the basis for the issuance of a warrant to search a private residence.
We can not change rules adhered to uniformly holding that, unless there be exact and definite showing of diligence, in an application for continuance, we must uphold the action of the trial court in refusing same, as not an abuse of his discretion. When it is admitted that no attachment was asked for the witness known to be absent when the trial began, until after the state had closed its case, and there is no showing of the possibility of getting said witness, save the statement in another bill of exception that she lived "a few miles" in the country, and when no affidavit of the absent witness, or of the party who has "advised" appellant that the witness was ill, is on file, we feel impelled to uphold the discretion of the trial judge in refusing the application for continuance, also in refusing to grant the attachment asked for the witness for the first time, when the state has closed its case. If the witness was really ill, it would appear easy to have procured the affidavit of some person who knew such fact.
The motion for rehearing will be overruled.
Overruled.