Appellant insists that the court misapprehended the record, which led to an erroneous holding that the supplemental application for continuance would be treated as a subsequent application. In so far as the witness Homer Couch is concerned we think appellant is right. The first application was based upon the absence of the witnesses Wilson and Bob Couch. The record does not show that any process had ever issued for Bob Couch, or that he in fact was wanted as a witness, save that he was named in the first application. When the court overruled appellant's application he ordered attachment for both Wilson and Bob Couch. The next day, and before announcing for trial, appellant filed what he called his supplemental application for continuance, wherein he stated that the name of Bob Couch had been inadvertently inserted in the former application and averred that it was Homer Couch whom appellant really wanted and for whom process had been issued. Skaro v. State, 43 Tex. 88 [43 Tex. 88]; Brown v. State. 3 Tex.Crim. App. 294. Dreeben Crosby was not mentioned in the first application, but for the first time appellant asked continuance because of his absence in the supplemental application. As to Dreeben Crosby the supplemental application must be treated as a subsequent one under the authorities cited in our original opinion and as to him did not measure up to the statutory requirements. The trial was had on the 2d day of February. According to the supplemental application subpoenas had been issued *Page 32 for Homer Couch on September 17th and 20th, one to Harrison County and one to Dallas County, and the witness reported not found in each instance. The record is silent as to any effort to serve said witness with process, to locate him, or to take out additional process between that time and the 29th day of January, when subpoena was again issued to Harrison County. This was only three days before the trial. If the witness was in fact served in time to appear in court lack of diligence would be immaterial. If not served, the delay in taking out additional process would show lack of diligence. The subpoena which had been issued on January 29th was not in court when the supplemental application was presented on February 2d, and appellant requested the court to ascertain whether such subpoena had been served. In his qualification to the bill the court says the subpoena set out in the bill was returned after the trial, and further says:
"That upon the presentation of said supplemental motion for continuance the court called upon the sheriff for information as to whether said subpoena had been served upon the witnesses Homer Couch and Dreeben Crosby, and the sheriff in open court stated that his information was that the witnesses could not be found within Harrison County and were out of the County."
The court's qualification as above set out is properly a part of the bill, the matters related having occurred in open court, and seems to reflect an effort to comply with appellant's request that the court ascertain if the witnesses had been served. It was at this point the court was called upon to rule upon appellant's supplemental application. From the facts then before the court he was justified in overruling the application for lack of diligence, for all the information then available indicated that the subpoena had not been served. The further qualification placed upon the bill cannot be considered. The facts therein stated seem to have been ascertained from an investigation made by the judge after the trial and not shown to have been made in open court, and therefore is not properly a part of the record, nor a proper qualification to the bill. See Revill v. State, 87 Tex.Crim. Rep., 218 S.W. 1044. The subpoena copied in the bill of exception contains names of other witnesses than Couch and Crosby. A check mark in pencil appears on their names and not on the others. The officer purporting to make a return of the subpoena was J. S. Boyd. The return sets out the name of no witness as having been summoned, but fees are charged for serving two witnesses. From this fact and the check marks appellant claims this court would be justified in *Page 33 holding that the two witnesses named were served. We cannot reach such conclusion without indulging in presumptions in aid of the return on the subpoena and therefore a presumption in aid of the bill itself, which we cannot do. The case was tried on the 2d day of February. The motion for new trial was not acted on until ten days later. Under the circumstances the burden was on appellant to show that the subpoena had in fact been served. This might have been done by Boyd's affidavit or by calling him to testify upon the hearing of the motion. Neither course was pursued. The record being silent upon the issue, we feel constrained to hold that the bill fails to show that the court committed error in denying the application for continuance or in overruling the motion for new trial based upon such action.
The motion for rehearing is overruled.
Overruled.