The principal question in the case, is, whether or not the application for a continuance was sufficient. The defendant proved, by the witnesses on the trial, where he was on the night when the goods were stolen from the house, up to about three o’clock in the morning. The only material witness, according to the application, to show where he was from that time until eight o’clock, A. M., of the same morning, was Eather Parissote. The only diligence used to procure his testimony was, to have a subpoena issued for him on the 27th day of September, 1858, which was returned, “ not found,” on the next day. The cause was tried on the 4th day of October, 1858. It is not stated where Eather Parissote resides; but it *596is stated that he is temporarily absent, and that, bad he known of bis absence, be would bave endeavored to bave procured bis deposition.
That this is not sufficient for a second application, is too clear for comment. (Code Crim. Pr., Art. 518, 519; Hyde v. Tbe State, 16 Tex. Rep. 445.) Tbe statement of facts exhibits some circumstances tending to rebut tbe presumption of bis guilt, as charged, but not of that forcible character, that would justify us in setting aside tbe verdict of tbe jury, rendered under a charge so perspicuous and correct. Tbe judgment is affirmed.
Judgment affirmed.