(on rehearing). A petition for rehearing has beep filed, in which our attention is called to the amended record brought up by certiorari. The original brief of appellant was filed on July 23, and the motion for continuance was copied in full therein, but there was .no showing as to the proceedings relating thereto, except that it was overruled. The brief of the State was filed on August 7, and it was there insisted that a proper showing to obtain a continuance had not been made. .
Thereafter appellant suggested a diminution of the record, and a writ of certiorari was issued by the clerk of this court on September 1, 1923, and the return thereon by the clerk of the court below was filed on September 4. This return contains the judgment of the court overruling the motion for a continuance, and in' this judgment it is recited that an attachment issued for the absent witness and was duly served, and that the court appointed a reputable physician to examine the witness, and that the physician made the examination and reported that the witness would b.e unable to attend court for a period of ten days, but would then be able to attend.
The judgment .brought up on certiorari further recites that “comes the prosecuting attorney, Sam Rorex, and states to the court that he will admit that the testimony of said witness would be as alleged, and, upon said agreement being entered by the prosecuting attorney, over the objection of the defendant, the court doth overrule said motion for a continuance, and orders that said cause be tried, to which ruling and judgment of the court the defendant at the time objected and saved his exceptions.”
Our attention was not called to this record, and it was not therefore considered by us on the original submission, and we accepted the view of the Attorney G-eneral that a proper showing to obtain a continuance had not been made.
It now appears that appellant did use diligence to obtain the attendance of the absent witness and did make the showing which we said in the original opinion should have been made. The continuance should therefore have been granted.
' Counsel for appellant says that the ruling of the court below to which appellant excepted was made upon the assumption that appellant was entitled only to have the testimony admitted as a deposition without any admission of the truth of the testimony. If this is true, the court was in error, for, if appellant’s showing entitled him to have the witness present, that right could be denied him only by admitting the truthfulness of the testimony; and that was not done.
The materiality of the testimony is not questioned, and, as there was a showing of diligence and that the attendance of the witness could be procured, the continuance should have been granted, and the right thereto was not defeated by the offer to admit the recitals of the motion for a continuance as a deposition of the absent witness without admitting the truthfulness thereof. Price v. State, 71 Ark. 180; Graham v. State, 50 Ark. 161; Jones v. State, 99 Ark. 394.
The judgment of affirmance is therefore set aside, and for the error in refusing the continuance the judgment is reversed and the cause remanded for a new trial.