The opinion
ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.
In appellant’s motion for rehearing it is called to our attention that we inadvertently made the erroneous statement in our original opinion relative to the fact that the instrument denominated “Appellant’s Second Motion for a Continuance” did not show therein that the testimony of the desired witness could not be procured from any other source. In this we were in error. The motion does make such statement and that portion of the opinion is withdrawn.
We think it is apparent from the face of the instrument *608 and from the state’s motion controverting the same that the appellant was lacking in diligence in order to procure the attendance of the witness, Audie L. Miller.
It is shown in the record that this cause was originally set for April 10, 1950; that on April 7, 1950, an application for the issuance of a subpoena for Audie L. Miller was filed with the district clerk of Wichita County; that the witness was alleged to reside in Dallas County, Texas; that the subpoena for said witness was issued and sent to the sheriff’s department in Dallas County, Texas; that same seems to have been received there on April 8, 1950; that it was not executed but returned with the following notation:
“Returned unexecuted this 10th day of April, A.D., 1950, as unable to locate the within named witnesses in Dallas County, Texas, after diligent search and inquiry.”
This subpoena was returned and filed with the papers on April 11, 1950.
On April 10, 1950, the defendant filed an affidavit wherein the question of insanity was raised. Same was tried and disposed of on that day. On the following day, this case was called for trial on its merits, and the defendant made a motion for a continuance, which was granted, and this cause was set for April 24th. When this case was called for trial on said date, the defendant did not appear, and at the request of his attorneys, the cause was reset for 1:30 P.M. on the same day. At that time the defendant had still not been located, and his bond was then forfeited. Thereafter, he was apprehended in a different state and returned to Ellis County, Texas. The district court of Wichita County issued its bench warrant and the case was set for trial on Monday, May 29, 1950. Again, this case was passed from May 29th to May 31st, at which time the defendant’s trial seems to have taken place. In the first place, it is shown that this witness was- never subpoenaed at any time, but he did appear upon the insanity trial on April 10, 1950. Thereafter, neither the witness nor the appellant seems to have appeared in court, and no process was ever requested to compel the attendance of the witness. We think the defendant was entirely lacking in diligence or in making an endeavor of any kind to insure the presence of the witness Audie L. Miller on the trial of this case.
Complaint is again made of the fact that the district attorney of Wichita County, in his argument to the jury, made the *609 statement that “under this evidence he (appellant) is a professional from Dallas.” We think this argument was justified by the evidence. We do find that the appellant was in possession of paraphernalia, including nitroglycerine and other explosives, as well as a gas pencil or gun, and gas masks, which could be utilized in whatever endeavor he might be engaged in. We think the testimony amply sustains the statement made by the state’s attorney.
The remark of the district attorney, in speaking of the persons who had committed the burglary, as “these hoodlums from Dallas,” is again complained of. We hardly think that because the district attorney referred to the appellant and his companions as “hoodlums” would be a sufficient amount of abuse to warrant the matter being considered as a basis for a reversal of this case.
Believing that this case has been properly disposed of, the motion for rehearing is overruled.