Appellant insists that we erred in concluding that no diligence was shown in attempting to secure the presence at the trial of witness Sedalia Clark. We are still of the same opinion. It is stated in the application for continuance that the indictment herein was returned on February 7th, and that subpoena for said witness was issued February 14th. Appellant waited a week. It is true that he had the right to depend upon the issuance of a subpoena for a witness by the State, but the fact that the State waited a week before issuing its subpoena, does not excuse appellant for not having sought one sooner.
We know of no rule requiring the granting of a new trial because of the overruling of an application for continuance where no diligence is shown, unless the trial judge or this court be impressed with the fact that the testimony of such absent witness would likely bring about a different result, and that to be deprived of it would work an injustice. Appellant attached to his motion for new trial the affidavit of Sedalia Clark. Same was before the court for his consideration. We find nothing in same leading us to believe that the trial judge abused his discretion in concluding that had the facts set out in the affidavit been before the jury, no different result would have been reached.
We have again examined the record and are confirmed in our conclusion announced in the original opinion that the officer was justified in his search of the appellant's car. When the officer approached same appellant with a hammer broke several jars or bottles of whisky. Appellant did not testify, or deny any of the matters given in testimony by the State.
The motion for rehearing will be overruled.
Overruled. *Page 83