
    Buddie Smith v. The State.
    No. 3159.
    Decided June 3, 1914.
    1.—Murder—Indictment—Citizen.
    In the absence of any testimony in the record on appeal, a complaint that one of the members of the grand jury who returned the indictment was not a citizen of the county of the prosecution, can not he reviewed, the trial court finding against such contention.
    3.—Same—Announcement—Surprise—Bill of Exceptions.
    In the absence of a hill of exceptions to the action of the trial court refusing defendant to withdraw his announcement, etc., on the ground of surprise, the same can not he reviewed.
    Appeal from the District Court of DeWitt. Tried below before the Hon. John M. Green.
    Appeal from a conviction of murder; penalty, imprisonment for life in the penitentiary.
    The opinion states the case.
    No brief on file for appellant.
    
      O. E. Lane, Assistant Attorney General, for the State.
   HARPER, Judge.

Appellant was convicted of murder and his punishment assessed at imprisonment in the- penitentiary for life.

No bills of exception and no evidence accompany the record. Appellant filed a motion to abate the indictment, on the ground that one member of the grand jury returning the indictment was not a citizen of DeWitt County, and, therefore, a person unauthorized by law was present when the indictment was being considered and voted on. A contest of this issue was filed by the district attorney; evidence was heard by the court, and he finds that R. J. Poth was a citizen of DeWitt County when he was empaneled and during the time he served on the grand jury. In the absence of any testimony we can not review this finding of the court.

Appellant during the trial, alleging surprise, asked leave to withdraw his announcement of ready for trial, and permission to move to continue the case. The court overruled the application. No exception was reserved' to the action of the court, and it may be that the attendance of the witness whom- appellant named was secured at. the trial. At least, in the absence of a bill of exceptions to the action of the court we can not review the question.

No evidence accompanying the record, the judgment is affirmed.

Affirmed.  