The opinion
ON REHEARING.
March 1, 1922.
LATTIMORE, Judge.
—That we sustained the action of the trial -court in overruling appellant’s motion to strike from the indictment the words “alias George H. Scott,” is seriously urged as error in the motion for rehearing by appellant. We find ourselves unable agree to this contention after more mature reflection. Articles 559-560-567, Vernon’s C. C. P., do not apply. As we understand those articles of our statute, one who is indicted under another than his true name may suggest that fact, and thereupon the true name will be inserted in the indictment and the trial proceed. Chadwick v. State, 89 Texas Crim. Rep., 531 . Considering the matter as one procedure generally, we are of opinion that if such person has been go
*176
ing under another name than his own and this fact exist in such connection as that it be provable as a part of the development of the case against the accused, and he be indicted under his own name and also the other name used by him, as an alias, he would no more have the right to have such alias stricken from the indictment he would hve to have) removed therefrom any other allegation of a provable fact. We cannot conceive of any rule of reason upon which injury can be presumed to appellant from the fact of his being charged as George P. Hornsby alias George H. Scott. We are de/ciding this question as applicable to the facts before us and are not announcing a rule which might be applicable where there was one) or more aliases stated in a case where the fact of the accused having gone under an assumed name was not connected with the proof of any issue necessarily shown in the development of the case as pleaded.
Said motion also urges that we were wrong in upholding the refusal of the) continuance applied for by appellant. This matter has also been seriously considered by us, but we are unable to arrive at a conclusion different from the one heretofore announced. The speedy trial of criminal cases is one of the guarantees of the Constitution and is desirable from the standpoint of the State as well as the accused. It was not discussed in our opinion, but the continuance refused appellant, complaint of which is now under discussion, was the second continuance sought, the first application having been presented in January, 1921, and the application for continuance upon the instant trial having been filed on March 15, 1921. It is argued against the soundness of our conclusion that no diligence was shown to obtain the depositions of the three Alabama witnesses whose testimony was not before the court, that no diligence could have secured their testimony in time for this trial. We are unable to see how appellant or this court could know such fact. As stated in the opinion, the return showing failure to obtain the depositions of said witnesses was filed a week or more before the date of trial. The trial itself occupied many days. Neither appellant nor this court could know that if he had again promptly forwarded interrogatories to Alabama for the taking of the depositions of said witnesses, that the trial court would not have postponed the cause for some days, or that the depositions might not have been taken and have arrived either before the beginning of said trial or during same. Discussing the matter in the light of a second application, we observe that the rule in such case is much stricter. It is stated in many cases that a second application will not be granted for merely cumulative testimony. Vernon’s C. C. P., Art. 609, for enumeration of authorities. Appellant had the benefit of the testimony of a number of witnesses who by depositions stated substantially the same facts as he expected from those whose depositions were not obtained. So it is also stated that no presumptions obtain in favor of a second application for continuance, and that it must be shown that the accused is guilty of no laches or
*177
neglect. Goode v. State, 57 Texas Crim. Rep. 223 ; Deekard v. State, 58 Texas Crim. Rep. 34 .
Being unable to agree# with appellant that the opinion of the court as originally handed down announced an incorrect conclusion, the motion for rehearing will be overruled.
Overruled.