Appellant brings his case before us asking *Page 237 for a rehearing and that we set aside our opinion rendered at a former time during this term.
In our original opinion we declined to consider the facts adduced in support of that part of appellant's motion for new trial setting up misconduct of the jury, because no statement of such facts as were brought before the court in support thereof, was filed during the said term of court at which the case was tried; neither was any bill of exceptions containing said evidence filed during said term. The settled law of this State, by the decisions of this court, requires that a statement of the facts in such case be filed during the trial term.
Appellant insists in this motion, that we were in error in our above holding, but a review of the record has confirmed us in the correctness of our opinion. There is no separate statement of such facts filed, and the only reference thereto is found in appellant's bill of exceptions No. 1 which was filed on February 25, 1918, long after the adjournment of said trial term of court. An examination of said bill of exceptions shows what purports to be the testimony adduced on said hearing, set out at length, but there is, nothing in said bill, or the approval of the same, which shows any filing of said statement during term time. Following said testimony, as set out in said bill, appears a blank agreement for the signature of the attorneys and an approval of said statement by the trial court which is not in any wise dated, and this is followed by a blank for the approval of the district clerk showing when the same was filed, but there are no dates in said certificates nor is the name of the district clerk appended thereto; and there is nothing in the bill, as stated before, which shows when said statement of facts was filed, if same was ever filed, and this bill of exceptions, as stated, was not filed until adjournment of the term.
It is also strongly urged in said motion that we were in error in holding that the trial court correctly overruled appellant's application for a continuance. He insists that it is error for the lower court to overrule an application for a continuance in the beginning of a trial, and thereafter let the accused try his case believing and relying upon the fact that reversible error has thus been committed by the court, when in fact, the court is acting in accordance with a secret agreement or understanding that the State is to be permitted near the close of the trial to admit the truth of the facts set up in said application, and thereby seek to deprive appellant of the benefit of such error.
Appellant bases his complaint on an erroneous assumption, to-wit: that there was some secret agreement shown on the part of the lower court in overruling said application, to the effect that he would later permit the State to admit the truth of the matters which appellant expected to prove by the absent witnesses. We have searched the record carefully to ascertain if there be anything on which such *Page 238 assumption of appellant might be fairly based, and our conclusion is that the facts seem to warrant the opposite assumption, that the State had tried to find and bring into court the two absent witnesses, and did in fact produce one of them; but failing to find the other the State was then forced to the necessity of admitting the truth of the alleged testimony of said witness whom they could not find. This, we think, the State had a clear right to do. If the rule should be as appellant contends, and the State be compelled to make its admission of the truth of the facts set out in the application, at the time or before the court overruled same, it might easily result in studied efforts to keep witnesses away who might otherwise be found during the progress of trials; and it certainly would render nugatory the well settled rule that where it plainly appears from other testimony that the absent witness would not testify as alleged, or that such testimony is improbable and not likely true in such case the application is properly overruled. The application for a continuance because of the absence of a witness should be genuine and truthful and the party making same should state accurately as possible what said witness or witnesses would testify. The opposite party cannot be deprived of the right to bring such witnesses into court at any time before the evidence is concluded, nor do we see any weighty reason why the truth of such testimony may not be in like manner admitted when the personal presence of the witness is not had. If counsel wished this court to act upon the proposition that the trial court was a party to any proceeding to deprive appellant of any right, the same should be shown otherwise than by an argument.
Appellant further contends that we should have reversed the case because of the language used by the prosecution in the closing argument. It is apparent that appellant misunderstood our former opinion. We did not say in the same, as we are quoted in this motion, as having said: "The language used in the closing argument was very objectionable," but stated that the language of the prosecutor, as stated by the court in his qualification of the bill of exceptions, was in no wise erroneous. The language attributed to the prosecutor in the bill of exceptions as prepared and presented to the trial court by appellant, was very objectionable, but said court in approving said bill emphatically says that no such language was used, and appellant having accepted the bill in that form, we have no other option except to do likewise. We have again examined the argument, as stated by the court, and fined nothing erroneous therein. The statement in said argument that the State had found one of the absent witnesses and brought him to court, but were unable to find the other, and therefore admitted the truth of his testimony, seems to us not open to the criticism of appellant. It appears to have been repeatedly stated in said argument not only that the State had admitted as true, all the facts stated in said application, but also *Page 239 that the jury were to consider them as true. This motion is strongly and ingeniously argued by appellant and we regret we are unable to agree with his learned counsel in the legal propositions announced.
Believing that the former opinion of this court is correct, the motion for rehearing is overruled.
Overruled.