Appellant has filed a motion for rehearing supported by an able and plausible argument to the effect that this court was in error in holding his application for a continuance fatally defective because the rule inhibiting the granting of subsequent applications for cumulative testimony could not apply to evidence relating to the defense of an alibi since this character of testimony has been held to be not cumulative in the legal sense of that word.
Appellant cites the cases of Smythe v. State, 17 Tex.Crim. App. 244; Terry v. State, 272 S.W. 466, and others, which appear to hold that testimony relative to the defense of an alibi is not cumulative.
One of the indispensable statutory requisites prescribed by Art. 544, C. C. P., for subsequent applications is that requiring an averment that the expected testimony "cannot be procured from any other source known to the defendant," and we think this provision is mandatory.
"A second application must conform strictly to the statute, nothing being presumed in its favor." Henderson v. State, 5 Tex.Crim. App. 134. Barrett v. State, 9 Tex.Crim. App. 33.
The Legislature undoubtedly had the right to command the insertion of this averment in subsequent applications and its mandate is binding upon this court. *Page 424
In the case of Goode v. State, 37 Tex.Crim. Rep., Judge Ramsey, speaking for the court, uses the following language:
"It has also been uniformly held that nothing will be presumed in aid of a second application for a continuance and that strict compliance with all requirements of the statute is essential to its sufficiency * * * * It is, of course, a well settled rule that the granting or refusal of subsequent applications for continuance has always been a matter discretionary with the court."
Believing that the disposition of the case on the state's motion for rehearing was correct, the appellant's motion for rehearing is accordingly overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.