¶1(specially concurring) .
¶2While I agree that the evidence is sufficient to sustain this conviction, I believe the sentence is excessive and should be modified to two (2) years. Throughout other portions of the State similar convictions of this nature are being assessed the two year sentence. Likewise, and notwithstanding the failure to provide the affidavit for continuance, I believe the court should have made some inquiry into the absence of the penitentiary witnesses and records. Five days prior to the trial, the defense counsel personally delivered the subpoenas to the Pittsburg County Sheriff’s Office for service, but they were not served on the prospective witnesses. This may be a process of preventing the defendant’s capability of offering a legitimate defense. Consequently, I believe the court should find out why the subpoenas were not served. To my way of thinking, this inquiry would better serve the ends of justice.
¶3ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE FORTHWITH
¶4A Petition for Rehearing has been filed in the above styled and numbered cause asserting that counsel for Appellant did, in fact, exercise due diligence under all the facts and circumstances attending the particular case before us. Assuming that due diligence had been shown, which in this case has not been demonstrated, Appellant’s claim of abuse of discretion must still fall for the reason that he failed to set forth the materiality of the testimony of said witnesses or what they would testify to if present, in such a manner that they could have been stipulated to by the State, and such stipulation could then have been presented for the jury’s consideration without the necessity of granting a continuance and delaying the trial.
¶5The Petition for Rehearing must be denied for the reason that due diligence was not demonstrated, nor was the affidavit for continuance filed as required by law, setting forth the materiality of the testimony of the witnesses in such a manner as could be stipulated to by the State.
¶6IT IS THEREFORE THE ORDER OF THIS COURT that the Petition for Rehearing be, DENIED, and the Clerk of this Court is directed to issue the Mandate FORTHWITH.
¶7WITNESS OUR HANDS, and the Seal of this Court, this 14th day of September, 1976.