Appellant contends we were in error in not sustaining his bill of exception taken to the refusal of the court to grant him a new trial. He sets up in said motion that when his case was called for trial four witnesses were absent, all of whom had been properly served with process; that he announced ready expecting the witnesses to come in as he had made arrangements to have them brought from their homes some 18 miles distant from the court house; that one of the witnesses had a car and had agreed to bring the others, but that on the morning of the trial this witness's *Page 210 child was taken seriously ill with diphtheria, which required him to use his car in taking the child to a sanitarium in another county; that after the trial had proceeded for some time and his witnesses still had not come he sent a service car after them but on account of the condition of the roads the driver was unable to make the trip and return with the witnesses in time to testify. It is also averred in the motion that he asked the court for a postponement of the case. Attached to the motion are the affidavits of the service car driver and some of the witnesses who were absent. Article 616, C. C. P., provides that:
"A continuance may be granted on the application of the State or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unsuspected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had, or the trial may be postponed to a subsequent day of the term."
After appellant discovered his witnesses would not be present he filed no written motion asking permission to withdraw his announcement and for a continuance or postponement of his trial. Many cases will be found collated in the notes under Article 616 holding that such a proceeding is requisite, and that in its absence the matter can not be raised upon motion for new trial. See Graves v. State, 144 S.W. Rep., 961; Smith v. State, 40 Tex.Crim. Rep.; Batson v. State,36 Tex. Crim. 606; Bryant v. State, 35 Tex.Crim. Rep.; Childs v. State, 10 Texas Crim. App., 183. Many other cases to the same effect will be found under Section 340, page 195, Branch's Ann., P. C.
It is manifest that without enforcement of this rule orderly and expeditious trials could not be had. If the point should be decided as contended for by appellant the mere verbal suggestion of a postponement or continuance for an absent witness would lay a predicate, and the trial then proceed with accused taking chances of an acquittal; if disappointed in obtaining such result he could raise the question for the first time in his motion for new tral as to the materiality of the absent witness's testimony and demand a re-trial. We can not give our sanction to such procedure. The only case to which we are referred by appellant is Cooper v. State, 163 S.W. Rep., 424. It will be observed that the judgment was not reversed upon this point alone. There appeared to be a number of matters complained of and the court held that while no one might have been sufficient to authorize a reversal, yet when considering them together the court was not satisfied to permit a conviction to stand in that particular case. We do not regard *Page 211 Cooper's case antagonistic to the many holding to the doctrine which we have followed in the present instance.
The motion for rehearing is overruled.
Overruled.