Appellant devotes the principal part of his motion for rehearing and argument thereon to the contention that the trial court's refusal to permit appellant to withdraw his announcement and continue the case to secure the testimony of Berry Winn should not have been sustained.
Mings, the alleged purchaser, testified that he asked appellant if he had any whiskey, to which appellant replied that he did not have it there, but would have to go after it; that this conversation occurred in the rear of Winn's drug store; that in a few minutes he again saw appellant in the front of the drug store and appellant said it was back there in a carton on the shelf, that he paid appellant $2.50 and secured the whiskey. Mings says no one was present but he and appellant at the time of the first conversation, and makes no mention of anyone being present at the time of the last conversation when he learned from appellant where the whiskey was and paid him for it. *Page 96
Appellant testified that Mings asked appellant if he knew where Mings could get some whiskey and told Mings he did not have any, but would try to find some; that this took place in the back end of Winn's drug store; that appellant left and found a negro by the name of Flowers who said he had some whiskey and appellant told him Mings wanted it and told him to take it to the drug store; that appellant went on toward the postoffice and came in the front door of the drug store when Mings asked him if he found anything and he told him yes, that it was back on the shelf. Appellant claims to have seen Flowers put the whiskey on the shelf. He says Mings gave him the $2.50 which appellant handed to Flowers, and that Winn was present and witnessed the transaction.
Under this state of the record we cannot agree with appellant's claim that he was not lacking in diligence in procuring process for Winn previous to the trial. According to his own evidence Winn was present during part of the transactions with Mings. It occurs to us that the slightest diligence would have prompted an effort to secure Winn's presence to support appellant's theory.
We have examined into the other questions urged by appellant in his motion for rehearing and think they were properly disposed of in our original opinion.
The motion for rehearing is overruled.
Overruled.