Appellant insists that we were not justified by the record in that portion of our opinion wherein we stated:
"It is made to appear that appellant learned that Miller had gone from Texas some time before the trial. Our law provides a way in which the testimony of one who is permanently out of the State may be secured on behalf of one accused of crime, but he is not absolved from the use of due diligence in getting same."
From the testimony of the father of witness Miller we quote: "My son is now making his permanent home in California. . . . The past four years I have lived in about a mile and a half of him (appellant)". Referring again to his son, witness said: "He had an interest in a crop with me and I sold the last bale of cotton he was interested in on the 7th of December this last year; he left that day; I sold the bale of cotton in the morning and deposited the money in the bank for him and he left that evening." Appellant was recalled to the witness stand and testified as follows: "I had John M. Miller subpoenaed as a witness in this case; I knew that he had been subpoenaed. I do not remember just when I first learned that he had left Jones County, but it was some little time back."
We thus learn from the record that appellant lived a mile and a half from the home of witness and his father; that witness left Jones County for California on the 7th day of December, 1922; that all the parties lived in the country. That a month and two days after the departure of John Miller for California this case was tried and appellant presented his application for a continuance because of the absence of John Miller. He says while a witness that he knew John Miller had left the county some time back. Knowing this he made no effort to obtain the deposition of said witness. This seems to establish beyond controversy an entire lack of diligence. The law presumes that what is wanted is the testimony, not merely a continuance. This is the only point presented in the motion.
Believing that no error was committed, the motion for rehearing will be overruled.
Overruled. *Page 423