This case comes before us on rehearing. Appellant renews his insistence that the court erred in not granting him a continuance, in order to secure the testimony of Jim Brumblow. We held in the original opinion that the application was not good, on the ground that the testimony was cumulative of other testimony. Appellant combats this. Waiving whether we are correct or not in that position, we have reinvestigated the record. In his motion for new trial appellant makes the following statement, to wit: "The record further shows that on a former trial of this case, one P.D. Fowler, and Joe Fincher were present and testified substantially the same as the defendant expects to show by the witness, Jim Brumblow, and the record further shows that Frank Rainey, brother of Quince Rainey, a strong personal friend of the deceased, was present during the conversation between deceased and defendant, testified to by Quince Rainey, and although summoned by the State, and although present at every trial of this case, the State has failed and refused to put him upon the stand to testify in this case. The record further shows that Joe Fincher was subpœnaed by the State, as well as Jesse Hearston, but that the State has refused to place them on the stand, except on the first trial or rather mistrial, when a hung jury was had, the State placed Jesse Hearston on the stand, but since that time the State has failed and refused to place any of the witnesses who were immediately present during the conversation that took place between defendant and deceased just prior to the killing." The motion also states that these parties were strong personal friends of deceased. The fact that this was true, and they would testify to the same facts as the absent witness, if present, clearly excludes any right appellant would have to a continuance, because it shows conclusively that testimony was present which appellant refused to put on the stand, simply because the witnesses were personal friends of deceased. This is not a proper ground for refusing to use the witnesses at hand. Nor would it authorize this court to reverse the case in order to get a witness more friendly to appellant.
We do not deem it necessary to review the other grounds of the motion. The motion for rehearing is overruled.
Motion overruled. *Page 280