In his motion for rehearing appellant insists that we were in error in our former opinion in stating that no diligence was shown to discover the testimony of one Caudle, the alleged newly discovered witness. Appellant's insistence caused us to make a further examination of the record which has only confirmed us in the views already expressed. O. M. Fuquay was a witness for the state. Jim Williams was a witness for appellant. The testimony developed that the discovery of the whiskey which appellant was charged with transporting resulted from a collision between appellant's car and that of one Grissom. Both Fuquay and Williams testified to being present and what they observed at the scene of the collision immediately after it occurred. Appellant's own witness Williams testified that he, Fuquay and Caudle were standing there talking at the time. By one of appellant's own witnesses the *Page 633 presence of Caudle was made known during the trial, yet there seems to have been no effort to get Caudle as a witness before the trial closed. The most ordinary diligence in the form of an inquiry from either Fuquay or Williams before the trial would have discovered what other parties were present and in a position to throw light upon the transaction, and this inquiry would doubtless have resulted in the discovery of the witness Caudle.
Appellant's motion for rehearing is overruled.
Overruled.