In his motion for rehearing appellant strenuously urges that we were in error in our original opinion in holding that diligence was not shown in attempting to secure the presence of the witnesses at the trial. Our attention is directed to a matter which was overlooked at the time the original opinion was written and we are inclined to believe appellant's contention is correct. The main application for continuance as found in the transcript covers practically four pages of typewritten matter. Attached thereto is the process for the absent witnesses which is made a part of the application, and covers eleven additional pages. In the main application the process attached is referred to. In the bill of exception bringing forward complaint at the court's action *Page 362 in overruling the application the main application only is set out. However, there appears in the bill a specific reference to the process attached to the application and makes them by such reference a part of the bill. Considering the process we think the diligence was sufficient. It by no means follows that the court was in error in overruling the motion for new trial based upon the refusal of the continuance. Set out in the application for continuance it is shown that part of what appellant expected to prove by the absent witnesses related to the officers shooting at the defendant's car. Under the facts of the case we regard that as unimportant. The officers themselves admit that when they had trouble in stopping appellant they fired at the casings on his car, shooting two of them down before they could make him stop. There is a further averment in the application that the witnesses would testify that they were present at the time appellant was arrested and "that they saw no liquor in the car and saw no liquor in the possession of defendant and that said defendant did not transport any liquor." That part of the proposed testimony that witnesses would testify "that defendant transported no liquor" was a conclusion and would not have been properly receivable. The officers testified that the five gallon keg in which the liquor was contained was in the tonneau of the car. They themselves did not see any "liquor" until after the bung was knocked out of the keg and some liquor was poured out by them. As we understand the record, this occurred after they had taken the keg to town. The officers themselves might truthfully have testified that at the time of the arrest they saw no liquor in the car and saw no liquor in the possession of appellant. If the witnesses had been present and had gone no further in their testimony than as set up in the application for continuance they would have testified, it would not likely have changed the result of the trial. The judge was fully justified in reaching that conclusion in overruling the motion for new trial.
The motion for rehearing is overruled.
Overruled. *Page 363