citation">294 S.W. 554 presents a similar situation. Such is not the situation in the instant case. The judgment recites in part as follows:

"* * * and both parties announced ready for trial, and the defendant pleaded not guilty to the charge contained in the indictment; Thereupon a jury, towit: A. L. Webb, and eleven others, was duly selected, impaneled, and sworn, who, having the indictment read, and the defendant's plea of 'not guilty' thereto, and having heard the evidence submitted, * * *"

Thus it appears affirmatively that issue was properly joined by the plea entered.

Appellant further complains that we failed to discuss his bill of exception No. 10. It reserves exception to the trial court permitting the state to prove by Emma Hickman facts showing two acts of intercourse between prosecutrix and appellant subsequent to the one relied on by the state. Without objection prosecutrix had testified that appellant had four acts of intercourse with her, and the details of the very transactions made the basis of complaint in said bill were developed by appellant on cross examination of Mack Hickman, the husband of Emma. It follows that there is no basis for appellant's complaint.

Appellant calls attention to an error in our former opinion wherein the statement was made that "no process for the absent witnesses appears in the record." Returned process for witnesses Bloth Miller, Tressie Miller and B. Daniel were attached to the application for continuance. The entire application was not set out in the bill of exception and in this manner the process was overlooked. The return on the process shows that the sheriff of Hopkins County had been unable to locate the two Millers and that Daniel had been *Page 9 served. Supplemental application for continuance was made requesting delay on account of the absence of the witness Wilson, who had also been served with process. The indictment was returned on June 7th, 1927. The case was not tried until six months later at the October term of court. Process was not taken out for any of these witnesses until the 18th day of October, the case being set for trial for the 25th day of October. The record is entirely silent as to when appellant was arrested. It is incumbent on one seeking delay of a trial because of an absent witness to affirmatively show diligence to procure his attendance. Manifestly if appellant was arrested shortly after the indictment was returned he would be lacking in diligence to delay asking for process until appearance day of the next term of court, which was only seven days before the case was set for trial. In the absence of some showing with reference to the date of arrest we must hold that diligence is not shown. Lack of diligence in procuring process for Daniel and Wilson would be immaterial as they were in fact served, but if present they would not have been permitted to testify to the matters set out as expected from them.

The motion for rehearing is overruled.

Overruled.

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