Appellant predicates his motion for rehearing on the claim that this court was in error in disposing of the bill of exception complaining of the trial court's action in overruling appellant's application for continuance.
The application was based on the absence of three witnesses, Hogan, Tom and Bailey. There is no statement in the application for continuance showing what became of the process which was issued for said witnesses. In that respect the application for continuance was bad on its face. In addition to the authorities cited upon the point in our original opinion, the following recent cases are noted: Collins v. State, 114 Tex. Crim. 673,26 S.W.2d 1074; Best v. State, 28 S.W.2d 803; Holder v. State, 116 Tex.Crim. Rep., 31 S.W.2d 637; Winfrey v. State, 122 Tex.Crim. Rep., 55 S.W.2d 1046; Winfrey v. State, 65 S.W.2d 297. The trial court could well have rested his action in denying the continuance on the defect pointed out. The bill of exception complaining of the matter furnishes us no light upon the reason for the court's action. The bill only sets out the application for continuance and reserves exception to its refusal. The court approves the bill
without assigning any reason for denying the continuance, saying only that the witnesses Tom and Bailey were brought into court during the trial and were not used as witnesses. It is not set out in the bill that upon the question of diligence evidence was heard by the court, nor is such evidence set out in the bill, nor are we referred to it as being incorporated in the statement of facts. Appellant, however, insists that such evidence is so incorporated in the statement of facts, and that this court should go there to get facts which would supplement the application for continuance in the particulars in which it is defective. If we should do as appellant insists, then if a continuance was sought for an absent witness, and the application totally failed to set out what evidence was expected from the witness — (an indispensable requisite, article 543 C.C.P.) — this court could be forced to the statement of facts if anywhere therein it appeared what the evidence of the absent witness might be. In the interest of orderly procedure the consistent holding of this court has been to the contrary. As exemplifying such holding generally, we quote section 208, p. 297, 4 Texas Jurisprudence. "The court will not look beyond a bill of exception presenting a matter to find facts which should have been set out therein, nor refer to other portions of the record, such as the statement of facts, to supply omissions or make a complete bill, or to ascertain whether error has been committed; nor is it permissible to verify the allegations of one bill by reference to those of another. The court will not look to appellant's brief to supplement a bill, or indulge in presumptions or inferences in aid of it. Nor can a bill be aided by statements in a motion for a new trial or by a statement in reply to such a motion."
Many cases are cited in support of the text.
However, if, as appellant insists, we should go to the statement of facts, we would still be unable to say the court was in error in denying the continuance. The record shows that appellant was under bond to await the action of the grand jury, and that no process was asked for the witness Hogan until twelve days after the indictment was returned. If the court based his action in denying the continuance on this delayed request for process he would not be without precedent to support his action. It has been held that in some instances it is necessary to show in the application for continuance the date of appellant's arrest, in order to overcome apparent lack of diligence in securing process. Shepherd v. State, 111 Tex.Crim. Rep.,10 S.W.2d 730. In other words, the bill of exception complaining
of the denial of continuance must show that diligence was used to secure process.
In Brannan's case, 108 Tex.Crim. Rep., 1 S.W.2d 279, the court was dealing with a second application for continuance, which had omitted an averment that the testimony expected from the absent witness could not be procured from any other source. This was a necessary averment in a second application for continuance. In passing upon the matter, the court said: "Under the settled law appellant's application for continuance was a second application, and fatally defective in omitting one of the statutory requisites. The trial court therefore was justified in overruling it, and the application forms no basis for a complaintin the motion for new trial on account of the denial of thecontinuance in the first instance."
In overruling the motion for new trial the trial court may have thought that had the witness Hogan been present and testified as indicated in the application for continuance — (though no affidavit of the witness was attached to the motion) — the result of the trial would not have been different. In view of the entire record we are not able to say that such finding would have been an abuse of discretion. In passing upon such question in Wiley v. State, 36 S.W.2d 495, we reached the conclusion that the appellate court should not reverse for the refusal of a continuance unless satisfied that the trial court had abused his discretion in refusing a new trial in determining that the absent testimony would not produce a different result. See also Barfield v. State, 118 Tex.Crim. Rep., 43 S.W. (2) 106; Fox v. State, 43 S.W.2d 951; Johnson v. State, 78 S.W.2d 965.
Appellant's very forceful motion for rehearing has led us to write more at length than we would ordinarily have deemed necessary.
We think our original opinion correctly disposed of the question.
The motion for rehearing is overruled.
Overruled.