The State moves for rehearing upon the proposition that we erred in reversing this case because of the refusal of a continuance sought because of the absence of witness Bowen. It was set up in the application that Mr. Bowen would testify that he had a lunch with appellant in Wichita Falls at about 3 o'clock P. M. on the very afternoon of the alleged crime, which occurred in Clarksville, Texas, in the afternoon of June 20th. We regard the diligence shown in the application as sufficient. The fact that the accused proved by other witnesses her presence in Wichita Falls during the afternoon of June 20th, would not operate to make the testimony of the absent witness cumulative, since the time of his lunch with her was at an hour not covered by the testimony of the other witnesses. Beside, — and if the absent testimony should be considered as cumulative, — when the defense is alibi, our authorities say that the rule upholding refusal of continuance when the testimony is cumulative, shall not be given strict application.
Not being able to agree with the State in her motion to set aside the judgment of reversal, the motion for rehearing will be overruled.
Overruled.