
    MYERS v. STATE.
    (No. 11371.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    1. Criminal law <&wkey;1090 (7) — -Overruling of application for continuance will not be reviewed, in absence of bill of exception.
    Trial court’s action in overruling an application for a continuance will not be reviewed, in absence of bill of exception.
    2. Criminal law &wkey;l090(l9) — Order in minutes reciting court overruled application for continuance and defendant excepted does not take place of bill of exceptions.
    An order taken from minutes, reciting that trial court overruled defendant’s application for a continuance and that he excepted, is insufficient to authorize a review of court’s action, since notation on minutes did not take place of proper bill of exception.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; • Henry S. Bishop, Judge.
    G. B. Myers was convicted of robbery, and he appeals.
    Affirmed.
    E. T. Miller, of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for 10 years.

Silas Hart was robbed in his store of the sum of $125. The offender, by placing Hart in fear of his life, forced him to open the cash register. The robbery occurred between 9:30 and 10 o’clock at night. Hart and two other witnesses who were present identified appellant as being the offender. Appellant did not testify, but introduced testimony to the effect that he was at another place at the time the offense was committed.

No bills of exception are found in the record. The record contains a first application for a continuance,, which has noted thereon, over the signature of the trial judge, the following:

“The above motion heard and overruled June 28, 1927, to which action of the court the defendant then and there excepted.”

A formal order overruling the application, showing -that appellant excepted, also appears of record. The motion for new trial, was based in part on the overruling of the application, and appended thereto were the affidavits of the absent witnesses.

The action of the court in overruling the application for a continuance will not be reviewed on appeal in the absence of a bill of exception in respect thereto. Branch’s Annotated Penal Code, § 304; Nelson v. State, 1 Tex. App. 44; Bray v. State, 101 Tex. Cr. R. 346, 276 S. W. 244. An order taken from the minutes reciting that the court overruled the application and that appellant excepted, is not sufficient. Wesley v. State, 60 Tex. Cr. R. 299, 131 S. W. 1107. Nor will the complaint in the motion for a new trial suffice. Branch’s Annotated Penal Code, supra. Furthermore, the notation on the application to the effect that appellant excepted to the action of the court in overruling said application will not take the place of a proper bill of exception.

The evidence being sufficient to support the conviction, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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