¶1 ON REHEARING.
¶2 May 3, 1922.
¶3 —In our opinion some suggestion was made intimating a lack of diligence in not procuring attachments for the absent witnesses. Appellant, in his motion for rehearing, says a complete record will show that the witnesses were fined for disobeying tlie subpoena and attachments ordered, and asks that he be granted a writ of certiorari to have the record completed, or that he be permitted to amend the record by a supplemental transcript showing the facts. While want of diligence was suggested, an examination of the opinion will disclose' that it was based on an entirely different proposition. In considering the motion for rehearing we will assume that a complete record, if before us, would reveal the facts alleged by appellant, and show complete diligence: by so doing it will not be necessary to delay the hearing to perfect the record.
¶4 When continuance on account of absent witnesses is denied, and error in that respect urged in motion for new trial, the trial judge and this court must determine from all the evidence on the trial, not only whether the alleged evidence of the absent witnesses was material, but also whether it was probably true. Sub. 6, Art. 608, Vernon’s C. C. P. Note 34, under Art. 608, page 320, Vernon’s C. C. P. for collation of authorities; Grayson v. State, 236 S. W. Rep., 1110. As was said in the latter case:
¶5 "The discretion lodged in the trial judge is to be exercised, not in an arbitrary manner, but the alleged absent testimony is to be appraised by him in a fair and reasonable way, in the light rof the facts developed during the trial.”
¶6 Two witnesses testified that as appellant’s car approached where the officers were blocking the road appellant was leaning over in the car hammering on something. Pour witnesses say whisky was flowing through the floor of the car; that the sack containing broken bottles was saturated with whisky, and the whisky could be traced back up the road some distance from where appellant’s car stopped. The application for continuance avers that Reynolds would testify that he met appellant’s car in the public road and saw him pick up a sack containing broken jars. When and where is not stated. It further alleges that Hunnicutt would testify that just prior to the officers *642 stopping appellant witness had been in the car and that the sack then contained broken jars.
¶7 For the trial court to have found the alleged evidence to be “probably true” in the face of the flowing whisky through the bottom of the car, would have resulted in a severe wrench of his judicial discretion, to say the least of it. We cannot escape the conclusion that the record shows no abuse of discretion on the part of the lower court. He was fully warranted in overruling the motion for new trial based upon refusal of continuance for want of probable truth of the evidence of the absent witnesses.
¶8 The motion for rehearing is overruled.
¶9 Overruled.