
    KOLB v. STATE.
    (No. 6863.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <&wkey;603(l I) — Refusal of continuance where diligence is not shown held proper.
    It was not error to refuse a continuance where witness out of the state was subpoenaed on day prior to the trial, and neither the process nor officer’s return was attached to the application, no diligence being shown.
    2. Embezzlement &wkey;>47 — Peremptory Instruction of not guilty held properly refused.
    Where accused sold automobile for owner, and failed to pay over balance of all money after repeated requests, and, after a visit of owner with an officer, promised to pay over money on a certain date, but did not, a peremptory instruction of not guilty of embezzlement was properly refused.
    3. Criminal law <&wkey;4l9, 420(11)— Conversations out of presence of accused held hearsay.
    In a prosecution for embezzlement, testimony as to conversations, of accused’s brother and another party out of the presence of the accused and prosecuting witness was properly excluded as hearsay.
    4. Criminal law &wkey;M09I (I I) — Bills of exceptions consisting of questions and answers not considered.
    Bills of exceptions consisting of questions and answers will not be considered on appeal.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    H. A. Kolb was convicted of embezzlement, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., and Jesse M. • Brown, Criminal Dist. Atty., of Fort Worth, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of embezzlement, and his punishment fixed at three years in the penitentiary.

From the record we learn that Mrs. Butler, a widow, owned a car which she wished to sell. She kept same in the garage of a man named Hedgecock, and informed him of her desire to sell the car. He came to see her accompanied by a Mr. Harper, of whom Mrs. Butler stated that he was appellant’s partner. The next day Mrs. Butler testified that she had a telephone conversation with appellant in which he told her the car had been turned over to him for sale, and that he had a sale for it “right now.” Mrs. Butler testified that she told him she would take $375 for the ear, out of which he was to take his commission and pay the battery bill of $12. Appellant asked her over the telephone if she would execute a bill of sale, and upon her answering in the affirmative he told her he would send one out. Mr. Hedgecock brought a bill of sale to her which she executed. The bill of sale appeared to be in blank — that is, the name of the purchaser was not written in at the time she signed same. Later Mrs. Butler said she went to appellant’s place of business, and he told her that he had sold the ear to a man who lived out of town, and that said purchaser had given him a check for the purchase price except $25, and that he had paid the battery bill of $12 out of this cash payment. He gave to Mrs. Butler $13 in money. She further testified that from time to time she called upon him for the proceeds of the sale of the car, and he put her off upon one excuse and another, saying that he had not gotten the money. Finally losing patience, she went to see him with an officer who was a friend or relative of hers, and he then promised to pay the money on a fixed date, which promise he failed to redeem, and Mrs. Butler testified that she had never received anything further from him for her car.

Appellant has three bills of exception in the record, one to the refusal of a continuance which, in our opinion, presents no error as same shows that a subpoena was ■issued on the day before the trial for a witness who was out of the state. Neither the process nor the return of the officer is attached to the application. This does not show diligence. Vernon’s O. C. P. pp. SOT-SOD. The second exception was to the court’s refusal of a peremptory instruction of not guilty. Such instruction was correctly refused. The remaining bill of exceptions is not in such form as that we can consider it. It consists of a statement in question and answer form of a lengthy colloquy between the witness, the attorneys and the court. Said bill then proceeds to set out certain questions relative to-a conversation between a brother of appellant and another party, it not being claimed that either appellant or prosecuting witness were present at said conversation. This was clearly hearsay, and the state’s objection to said conversation was properly sustained. Appellant reserved his exception, and states in this bill that he expected to prove a number of things by said witness, which manifestly were not connected with and could not have been any answer to the questions propounded by him to said witness, the answers to which were rejected upon the state’s objection thereto. We decline to consider bills of exception con sisting of questions and answers, but are of opinion that the action of the trial court was correct in refusing the hearsay testimony of said witness to conversations had out of the presence of appellant.

Finding no error in the record, the judgment of the trial court will be affirmed. 
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