Appellant files a persuasive motion, responding to which we have gone over the record in this case, which in some phases is one of first impression with us, — but we are not led to conclude that we erred in our disposition of same. Appellant cites Jones v. State, 115 Tex.Crim. Rep., in which Judge Martin, in his opinion, quoted a small part of the lengthy statement appearing under Note 5, subdivision 2 of the notes under Art. 543, Vernon's C. C. P. We have examined the numerous cases cited by Mr. Vernon in support of the text referred to, and find in none of them support for the quotation just mentioned as applicable to facts such as those which here appear.
We said in our original opinion herein that ordinarily the time for the accused to begin his diligent effort to get ready for trial would not begin until after he was indicted and arrested thereunder. Each of the cases cited by appellant in his motion comes under what we termed "ordinarily," notwithstanding we may have used in said opinions language which leads appellant to here urge upon us that same is authority against the conclusions advanced by us in the original opinion herein. He cites the Jones case, as above stated, and we have searched the opinion in that case to find therefrom when the accused was arrested, but could not find when; nor could we find whether he was on bond or in jail after such arrest before trial. The opinion in that case shows that the offense occurred April 26, 1929; that the indictment was returned July 5, 1929, and trial had on July 30, 1929. It was merely held in the opinion in that case that because subpoenaes for the witness were not sought until July 23rd, no diligence was shown. The quotation from Mr. Vernon appearing in said opinion, as above referred to, seems not to have any application to the disposition of the case, and no effort was made to show that the accused in that case was arrested before indictment, nor does any other fact appear in the opinion which would make applicable said quotation to the appellant's contention in that case. The same holds as to what was said in Shepherd v. State, 10 S.W.2d 730; also in Carroll v. State,46 S.W.2d 1110. *Page 461 Neither case showed an arrest and bond before indictment, and a chance expression such as that it was incumbent upon the accused as soon as he was arrested under the charge in the indictment to use the means provided by law to obtain desired testimony must be weighed in the light of the facts before this court in each case, which facts do not afford appellant herein any comfort.
So also as to what was said by Judge Harper in Murrell v. State, 184 S.W. Rep., 831. In that case the accused was bound over after a preliminary hearing. After indictment he made application for process to Coryell County for a witness. This court said in its opinion that the least diligence on the part of the accused would have revealed that said witness had been gone to Oklahoma for six months before said process was issued. When the case was called for trial, it was postponed for a week to allow the accused to take the deposition of said witness. The showing as to the manner of attempting to take this deposition manifested so much negligence that this court held there was no diligence shown to get the testimony. In the opinion on rehearing in that case there was a statement made regarding what was supposed to be a reference by this court in its opinion, — to diligence on the part of the accused before indictment, and Judge Harper disclaimed intent in his opinion to so hold, and said "His duty as to diligence to get his witness began when he was arrested on the indictment." This statement was purely obiter dicta, and had reference to something that had not been decided in the original opinion, and was not before the court for decision. This court held, — and decided the case against the accused upon the ground, — that he was negligent in failing to get the deposition of his witness, who had moved from Coryell County in July, within the knowledge of the accused, to a foreign jurisdiction.
We agree with appellant in this case that he could not be expected to get out process for his witnesses until after he was indicted, but are of opinion that when he executes a solemn bail bond, with all the formalities required by statute, binding himself to appear before the court to which his bond is returnable to await the action of the grand jury upon whether he should be indicted, and he fails and refuses to carry out the obligation but takes leg bail, and is found approximately a year later in another part of the world and brought back vi et armis, only to find that the indictment has been returned many months before, he can not complain if the trial court and this court ultimately should hold that the time occupied *Page 462 by him in endeavoring to escape the terms of his bond and the jurisdiction of the court should be held against him when he presents the question of his diligence in trying to get his witnesses.
The motion for rehearing will be overruled.
Overruled.