
    Gilbert Smith v. The State.
    
      No. 1018.
    
    
      Decided November 21.
    
    1. Statement of Pacts — Practice on Appeal. — A statement of facts filed, subsequent to tbe time allowed by order of tbe court can not be considered on appeal.
    2. Same — Continuance.—In tbe absence of a statement of tbe facts, tbe court on appeal can not determine tbe materiality or probable truth of tbe matters set up in tbe application for continuance.
    Appeal from tbe Criminal District Court of Harris. Tried below before Hon. E. D. CavlN.
    Appellant was indicted for tbe murder of Tony Ellison, and at bis trial was convicted of murder of tbe second degree, and given as bis punishment a term of ten years in tbe penitentiary.
    
      Tbe purported statement of facts found in tbe record was filed after more than ten days bad elapsed after tbe court bad adjourned for tbe term.
    No briefs on file with tbe record.
   DAYIDSON, Judge.

Appellant’s punishment was assessed at ten years’ confinement in tbe penitentiary, for tbe offense of murder in tbe second degree.

Tbe statement of facts, baying been filed subsequent to tbe time allowed by order of tbe court for that purpose, can not be considered an appeal. Tbe failure to file same in proper time is not sought to be explained.

In tbe absence of tbe testimony, we are unable to say tbe facts set up in tbe application for a continuance are material and probably true. Appellant may have been between 16 and 17 years of age at tbe time of tbe homicide, and bis character two years prior thereto may have been good at Yinita, in tbe Indian Territory, as a peaceable boy, and yet have no material bearing on any issue raised upon bis trial. When an application for continuance is refused, and such ruling of tbe court is sought to be revised on motion for new trial, or on appeal, tbe materiality and probable truth of tbe absent testimony must in some way be made to appear to tbe tribunal whose revisory power is invoked.

As tbe record is presented to us we find no error, and tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.  