
    RILEY v. STATE.
    (No. 7724.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.
    Rehearing Denied Oct. 31, 1923.)
    1. Criminal law ,<&wkey;>l099(ll) — Statement of facts must be authenticated to be considered.
    A statement of facts must be authenticated by the judge who presided at the trial in order to authorize its consideration (Vernon’s Ann. Code Cr. Proc. art. 844).
    2. Criminal law <&wkey;956(5) — Denial of motion for new trial held within court’s discretion.
    Where a motion for a new trial on the grounds of absent testimony was not supported by the, affidavit of the absent witness, the court was within its discretion in overruling the motion.
    3. Criminal law <&wkey;l 144(7) — In absence of evidence on appeal denial of new trial presumed within court’s discretion.
    Since the action of the court on an application for a continuance must be appraised in the light of the evidence adduced upon the trial, where there is no evidence before the court on appeal, the presumption prevails that the lower court was within its discretion in overruling the application.
    4. Criminal law <&wkey;>I 144(12) — In absence of statement of facts on appeal court’s ruling on evidence presumed correct.
    In the absence of a statement of facts on appeal, the court’s rulings on the admission of evidence are presumed correct.
    On Motion for Rehearing.
    5. Criminal law <&wkey;l099(7) — Consideration of statement of facts tardily filed held unwarranted.
    The fact that an attorney relied upon another as his agent to obtain the court’s approval of a statement of facts, which was not done, is insufficient grounds to warrant consideration after a tardy filing.
    ^s»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Barney Riley was convicted of murder, and he appeals.
    Affirmed.
    Fletcher S. Jones, of Beaumont, and Fred L. Perkins, of Houston, for appellant.
    E. T. Branch, of Houstod, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 25 years.

The document found in the record denominated a statement of facts is without the approval of the trial judge. Authentication of the statement of facts by the judge who presides at the trial-is essential to authorize its consideration on appeal. The statute requires this and many cases in point are found in Vernon’s Texas Crim. Stat. vol. 2, p. 819, note 22.

There are several bills of exceptions, one of which relates to the overruling of the second application for a continuance. The others relate to the ruling of the court upon' the admission of evidence.

As qualified by the trial judge, the bill of exceptions complaining of the refusal to continue the case reveals no error. It relates to absent testimony, which in the opinion of the trial judge was not probably true and would have produced no different results. The motion for a new trial is not supported by the affidavit of the absent witness, and the court in overruling the motion, was within its discretion. Moreover, the law contemplates that an application for a continuance and the action of the court thereon shall be appraised in the light of the evidence adduced upon the trial. There being no evidence upon this appeal, it is obviously impossible for this court to weigh it, and in this condition of the record the presumption prevails that in exercising his discretion in overruling the motion the trial judge was guilty of no abuse. See Vernon’s Tex. Crim. Stat. vol. 2, p. 320, note 34, and cases collated.

In the absence of a statement of facts, the complaint in the bills of exception to the ruling of the court in the admission of evidence cannot be valued, Their relevancy and materiality would obviously depend upon the facts adduced upon the trial. The presumption is in favor of the correctness of the ruling of the court. See Vernon’s Texas Crim. Stat. pp. 889, 897, 892, and 893; also Johnson v. State, 14 Tex. App. 310; English v. State, 4 Tex. 125. This presumption will prevail unless by the record it is overcome. The bills of exception of themselves do not show that the rulings made by the court were erroneous. In the absence of the statement of facts, we cannot measure the importance or the relevancy of the evidence which was before the trial court at the time he made the rulings and overruled the motion for new trial. *

The record presents no error. The judgment is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We have carefully examined the voluminous motion for rehearing filed by appellant herein, and regret that this court is not permitted to give effect to the statements therein of the reasons why the statement of facts was not filed within time. If the attorney for the appellant sees fit to make of any one else his agent for the purpose of obtaining the approval of a paper that should be filed within a certain time as 'fixed by law, and there is a failure to have the same so filed, we cannot hold this an excuse and direct that the paper be now considered. To so hold would entirely abolish those rules of procedure fixed by our statutes for an orderly preparation and conduct of trials until they are finally disposed of in appellate courts. We must decline to consider the statement of facts herein, and it follows that appellant’s motion for rehearing, based on our failure to consider it, presenting certain reasons as excuses for failure to file same, must be overruled.  