ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.In the opinion affirming this case mention is made of the fact that the bill of exception relative to the action of the court in overruling the appellant’s motion for a continuance failed to contain the application to compel the attendance of the witness, Jim Buster, or the appearance in the record of the subpeona for said witness. Appellant has now perfected the record by showing that such now appears therein and that a subpoena for said witness had been issue on the 26th day of November, 1952; that the subpoena was returned by the sheriff “not executed as to the witness Jim Buster & Richard P. Morris for the following reason: “Unable to find at home.”
*603In the motion for a continuance herein, which is the subject of Bill of Exception No. 2, it is shown that appellant had ascertained the fact on November 26, 1952, that this cause was set down for trial at some future date, the record showing that it was actually tried on December 3, 1952, or seven days after the subpoena had been issued relative to Jim Buster. In the motion it is alleged that appellant had been diligently looking for Jim Buster and tried to ascertain his location and had found out that he was visiting somewhere in Fort Worth, Texas; “and will probably not return to this city for a couple of weeks or more, but will return before the next term of this court; that the facts which this defendant expects to prove by said witness are as follows: That the said Jim Buster was the owner of the whiskey found on the premises of the Hub City Club, which is the same whiskey which is alleged in the information filed in the above numbered and entitled cause, to have been possessed by this defendant for the purpose of sale.”
In the appellant’s motion for new trial heard and overruled on December 18, 1952, we note that there is no affidavit or statement from the desired witness, Jim Buster, showing any testimony of any kind that he would have given had he been present at the trial, nor any testimony of any kind that he would give in the event of a further trial of this cause. The first motion for a continuance is not a matter of right, and like other motions, it must depend upon the surrounding circumstances of the case as well as other matters of diligence. It is shown from the statement that the witness would probably return to the county where this matter had been tried within a reasonable time. If so, we think that if his affidavit accompanied the motion for new trial relative to the possession of this liquor being in himself, it should have been shown.
We see no reason why this motion should be granted herein unless it be satisfactorily shown that the witness would have given the desired testimony in the event of the granting of a new trial.
The motion for rehearing is therefore overruled.