Page v. State , 94 Tex. Crim. 486 ( 1923 )

The correctness of our opinion is challenged wherein we stated that the record reveals no abuse of the discretion lodged in the trial court in passing upon motion for new trial based upon denying a continuance for absent testimony. In determining this question the trial court and this court must look to the entire record to determine the probable truth and effect of the purported absent evidence. (Article 608, sub. 6, C.C.P.; Grayson v. State, 91 Tex.Crim. Rep., 236 S.W. Rep., 1110.) If, however, the absent witness make affidavit that he or she would have sworn to the facts stated in the application, and such affidavit be attached to the motion for new trial, the question of the probable truth of such testimony is no longer one for the decision of the trial court. (White v. State, 90 Tex. Crim. 584 and authorities therein cited.) No affidavit of the absent witness being attached in the instant case we must be governed by the first rule announced, and considering the entire evidence in the record, we are confirmed in our opinion that the trial court was not in error.

Complaint is also made that we failed to consider the alleged error presented in his third bill of exceptions. It was not overlooked, but was not considered because the bill is in questions and answers without any apparent reason therefor. (See Childress v. State, 92 Tex.Crim. Rep., 241 S.W. Rep., 1029, in which many authorities are cited.) Ch. 119, Sec. 14, Acts 32 Leg. R.S. 1911.

All other matters called to our attention in the motion for rehearing were considered upon the original submission though some of them were not discussed, but we were of opinion no error was shown.

The motion for rehearing is overruled.

Overruled.