ON MOTION ROE REHEARING.
It is insisted that, if the facts brought to the attention of the court, and set out in the first division of the decision, did not require a postponement or continuance of the trial of the case against the accused, nevertheless the court should have granted the accused a new trial upon his contention that he had been fraudu- . lently misled by assurances given by the prosecutor and by counsel employed by the prosecutor to assist in the prosecution, to the effect that the case against the accused would not be called for trial, and would not be tried. If the defendant had neglected to subpoena his witnesses, upon statements made by the prosecutor and by counsel employed by the prosecutor, this fact should have- been shown to the court at the time the case was called, and the names of the witnesses should have been made known to the court, together with the material facts to which they would testify if present. The contention of the accused, to the effect that he was forced to trial without material witnesses, and that his failure to subpoena these witnesses was due to fraud practiced upon him by the prosecutor and to statements made by counsel specially employed by the prosecutor, urged as a ground in the motion for a new trial, does not authorize this court to reverse the judgment denying a new trial, in view of the counter-showing offered by the State. All the facts recited in this ground of the motion for a new trial were known to the accused at the time of his trial, and it does not appear that there was any sufficient reason for his failure to inform the court of such facts at the time. On account of his failure so to do, and in view of the showing made by the State upon the hearing of the motion, this court is not authorized to say that the trial judge erred in overruling the motion for a new trial.
Rehearing denied.