Appellant complains at length of our upholding the refusal of his second application for continuance. The indictment in this case was returned in October, 1924, and the case was not tried until April, 1925. It is not claimed in the application for continuance that any process was issued for the absent witness after October 30, 1924. Appellant admits in his motion that he has not shown diligence, but urges the application of the rule that even where diligence is wanting, if it appear on the trial that the absent testimony is material and probably true and that it might have changed the result, a new trial should be granted. Under the facts in this case we see no reason for the application of this rule. The absent witness was expected to testify to a conversation had by him with prosecutrix and in regard to the authenticity of a letter claimed by prosecutrix to have been received by her from appellant. The statement of facts is entirely devoid of any reference to the matters expected of the absent witness. Prosecutrix was not asked to state whether or not she had the conversation with him referred to in the application for continuance. No effort whatever appears to show that the letter received by prosecutrix *Page 129 and testified to by her as being in the handwriting of appellant, was in fact written by the absent witness. We have found nothing in the record to incline us to the view that the testimony set up in the application for continuance was probably true or that witness would have given same if present.
We see no reason to come to a different conclusion in regard to the testimony of the father of prosecutrix or that of the state witness, Mrs. Cox.
Appellant's motion for rehearing will be overruled.
Overruled.