It is urged that the remark of the district attorney, in substance, that the State had proved that appellant *Page 441 wrote the articles alleged to be libelous, and that the business of the complaining witness had been ruined, and that he had lost the fruits of his business on account of said publication, and that the reputation of said complaining witness had been ruined, and that the defendant has offered no testimony to contradict or deny that of the State witnesses, — was a necessary comment upon the failure of defendant to testify. We are unable to assent to the soundness of this proposition. Certainly if the business of the complaining witness had been ruined, and if the fruits of his business had been destroyed, and if his reputation has been soiled, by the alleged libelous publication, these were matters of which other persons than the defendant would have been cognizant. We think the remark of the prosecuting attorney not a necessary comment on the failure of the defendant to testify. The ruin of a man's business would appear to be a matter of knowledge on the part of the community, and this would be true of the man's bad reputation if acquired by the alleged injured party. If the defendant alone knew of the ruining of such business or the injury of such reputation, this would be a very different thing from that which was referred to apparently by the prosecuting officer.
One who is of opinion that he is not granted sufficient time in which to prepare an application for continuance, — instead of standing upon the hastily prepared application, should complain by proper bill of exceptions of the refusal of the court to allow him the time necessary for the preparation of a proper application. Examining the application itself, it is manifest that there is therein no recitation of facts from which the trial court or this court could form any conclusion as to the relevance or materiality of the testimony of the absent witnesses. The application for continuance was so entirely lacking in any showing of diligence as to evince no effort whatever on the part of appellant to have said absent witnesses present. There was no showing or statement of showing that the witnesses referred to had been summoned or that application had been made for process for them. This court has never held that it would be proper to set a premium on negligence or carelessness by ordering new trials in cases where no showing of diligence whatever appeared, and no excuse therefor.
Believing the matter was properly disposed of in our original opinion, the motion for rehearing will be overruled.
Overruled. *Page 442