Appellant again complains because of the court's refusal to grant to him a continuance in his case in order that he might have present the testimony of one "Baby" Spencer, which testimony, as shown by affidavit of the witness attached to the motion for a new trial, was material to his defense.
It is apparent from such affidavit that the testimony of this witness was certainly material to the appellant's defense, and if a motion for a continuance had been filed with the trial court at the proper time this court would have a different question presented relative thereto. We do think the testimony of the witness material, and if believed to be true by the jury it would probably have resulted in a favorable verdict for the appellant. Unfortunately for appellant, according to the trial court's qualification to his bill, he made no application for a continuance, nor did he make any oral request therefor, and ask permission to reduce the same to writing at a later date. The trial court's qualification to each bill referring to the absence of the witness Spencer is the same, and is in part as follows:
"Upon x x x Tuesday, April 11, 1939, about 9 o'clock A. M. the case was called for trial, and the State announced ready x x x and the defendant announced ready for trial. The names appearing on the list of jurors for the week were drawn and lists prepared and delivered to the district attorney and to the defendant, and the district attorney commenced interrogating the jury panel. Before this was completed, Hon. Vernis Fulmer, present attorney for defendant, came into court and advised the court that he had just been retained by defendant's mother to represent the defendant, and asked whether it would be satisfactory for him to do so and was assured that it was. *Page 367 He asked the court for a little time to confer with the defendant, which was granted, and when he returned, he asked that the trial be delayed in order to secure the attendance of E. V. (Baby) Spencer as a witness. This request was made orally and was refused. It was not made in writing, nor was any request made for time to commit it to writing, nor for permission to reduce it to writing and 'file it back' as of the time of the making of the oral request. Mr. Fulmer then requested an attachment for the witness, which was refused, in view of the absence of any showing whatever, or any claim or representation that said Spencer had ever been summoned as a witness, or that the defendant had ever applied for process for him. I did, however, order that a subponea issue for said witness, and ordered the sheriff to telephone Sheriff McMurray at Henderson and advise him that such subpoena had been issued and to request Sheriff McMurray to have the witness summoned at once and ordered to report at once, and to report back if such service was not had. The sheriff reported back to me that my instructions had been carried out, and from time to time reported to me that he had had no further report from Sheriff McMurray. I informed Mr. Fulmer that he would be permitted to use Spencer as a witness if he appeared before the conclusion of the trial, but that the trial would not be delayed on account of the absence of the witness, because of the total failure of defendant to exercise any sort of diligence to secure the attendance of the witness, stating to him, substantially, that the defendant had had nearly seven years in which to secure the attendance of the witness and had never done so. Mr. Fulmer from time to time through the trial asked permission to have Spencer called, which in every instance was granted, the officer in attendance upon the court making inquiry from time to time in the court room and without, as to whether the witness had arrived. Said attorney, from time to time during the trial, orally requested further time within which to procure attendance of Spencer.
"5. The trial was concluded some time in the afternoon, without the said Spencer having arrived, and the jury retired. Subsequently, and before the jury's verdict was rendered, Spencer put in his appearance, and defendant's counsel, as well as the court, were so advised, but he was not used as a witness."
Under this qualification we have no proper or legal grounds presented to us for granting this motion, and the motion will will therefore be overruled. *Page 368