The offense is theft of property of the value of over $50, and the punishment is two years in the penitentiary.
The appellant was convicted upon his plea of guilty to the charge. There are but three bills of exceptions contained in the record; the first of these bills complain at the court's action in refusing to postpone the case until the witness Clyde Feely could be located and his attendance secured. The court certifies in explanation of this bill that no application for the issuance of any process was ever made for said witness until the 13th of November, 1925, the record disclosing that the case was tried on this day. The record further shows that the appellant was indicted on the 17th day of September, 1925, nearly two full months prior to the date of the trial. With the record in this condition, the showing of diligence is utterly insufficient. There is nothing in this record that would tend to excuse or justify the appellant in waiting until the day of the trial to issue a subpoena for the absent witness, and there is no showing made that the subpoena was ever served and no reason given as to why this was not done. The rule is well settled in this state that the burden is upon the defendant to establish the exercise of diligence in support of an application for a continuance. Walker v. State, 13 Tex.Crim. App. 647; Grimes v. State, 178 S.W. 523.
Complaint is also made at the court's action in refusing a new trial on the ground of alleged misconduct of the jury. The evidence *Page 363 as to what took place in the jury room is more or less conflicting and we are disposed to hold that no abuse of the court's discretion is shown in regard to this matter. We are confirmed in this view of the case because of the fact that the appellant pleaded guilty and was given the lowest penalty prescribed by law for the offense with which he was charged. It is true that he asked for a suspended sentence and this was denied him by a verdict of the jury, but we will not hold under the facts contained in the record that this denial was probably due to any misconduct of the jury trying the case.
By another bill, complaint is made at the court's action in making a statement on the hearing on the motion for a new trial as to what took place at the time the jury was discharged. This matter was being heard by the court after the jury had been discharged, and we think no error is shown by the bill.
Finding no error in the record, the judgment is affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.