The opinion
on appellant’s motion for rehearing.
DAVIDSON, Judge.
Appellant recognizes that, upon the face of the record, he was lacking in diligence in securing process for his witnesses. He insists, however, that — under the peculiar facts here presented — -a strict application of the rules of diligence should not be applied. In this connection, he calls attention to the fact that upon presentation of the motion for continuance, testimony was introduced, showing that in Travis County — where there are three district courts which remain in practically continuous session — there had been established a local rule by the bench and bar governing the practice in criminal cases in said courts to the effect that no criminal case would be callable — or called—
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for trial until same had been first set for trial by the trial judge and notice of that setting posted upon what is known as the “bulletin board”; that process for witnesses could not reasonably be applied for prior to a setting of the case, because of the absence of a return date; that the instant case was not set for trial until the 15th day of April, 1944, when appellant applied for, secured the issuance of, and placed in the hands of officers process for his witnesses.
While it is true that circumstances may arise whereby an accused may be relieved of a strict application of the diligence rule relative to continuance of cases, as was pointed out in Arnold v. State, 97 Tex. Cr. R. 95 , 263 S. W. 278 , yet such question is not here before us because the State, in controverting the motion for a continuance, introduced testimony showing that this case was not first set for trial on April 15, 1944 — as contended by appellant — but to the contrary was first set for trial on October 25, 1943. Such testimony presented a disputed issue of fact for the trial judge and authorized the finding that the case was not first set for trial on April 15, 1944, as contended by appellant.
We remain convinced that the motion for continuance was properly overruled because of the lack of diligence on the part of the appellant to secure the attendance of the absent witness.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.