We were in error in stating in the original opinion that the homicide took place with a pistol belonging to the witness D. Pitts. The record shows that the pistol was the property of appellant's father and had been left at the residence of D. Pitts, and was obtained by appellant therefrom a short time before the homicide.
The statement of facts indicates that about a dozen witnesses testified after defendant's witness Pitts left the witness stand. The conflict between this witness' testimony and that of numerous other eyewitnesses touching the possession of the pistol by the deceased at the time of the homicide, in connection with the fact that while he was on the witness stand the State laid a predicate for his impeachment by evidence that his testimony at the trial was materially different from that given before the grand jury, and the fact that members of the grand jury were present as witnesses, was sufficient, we think, to suggest to appellant that his witness Pitts would be impeached, and to have required him in the exercise of diligence to have had subpoenas then issued for witnesses supporting his reputation for truth and veracity. Pitts was a resident of the community in which the homicide took place, and appellant sought, after the introduction of evidence had been concluded, to subpoena witnesses to prove his good reputation for truth and veracity. The court in allowing the bill states that two-thirds of the community, a hundred or two of them, were present at the trial on Saturday night when the motion to postpone was first presented. The written motion followed on Monday and states that appellant sought subpoenas for certain named witnesses to prove the good reputation in the respect mentioned of Pitts. The application fails to show where the witnesses reside and to what county he sought to have the subpoenas issued. It fails to show that the same testimony can not be had from other witnesses present, or to account for the delay in issuing the subpoenas otherwise than by the allegations showing that after Pitts had given important testimony the State introduced members of the grand jury to impeach him. Coming before this court for review of the action of the trial judge, the matter must be tested by its legal merits, and we can not hold that the application presents such grounds as would authorize this court to hold, as a matter of law, that the trial court abused his discretion in refusing the motion to postpone.
The motion for rehearing is overruled.
Overruled. *Page 278