
    The State v. Benton.
    1. Practice in Supreme Court: reviewing instructions without the evidence. This court cannot say that instructions, which are cor-re.ct as abstract propositions, were improperly given in a certain case, unless the evidence is contained in the record.
    2. -: surprise: objection too rate on appear. Where the case was called for trial, and defendant made no objection to proceeding to trial, he cannot for the first time in this court complain that he was not-prepared for trial, because his counsel had no opportunity to consult with him and prepare his defense.
    
      Appeal from Ilenry District Gourt.
    
    Tuesday, March 17.
    Indictment for embezzlement. Verdict, guilty; judgment; and the defendant appeals.
    
      L. G. & L. A. Palmer, for appellant.
    
      Smith McPherson, Attorney-general, for the State.
   Seevers, J.

This cause was submitted on a partial transcript, and we have before us the indictment, instructions, motion for a new trial, and certain affidavits in support thereof. But the evidence is not in the record before us, which we have examined, and readily reach the conclusion that the indictment is sufficient, and that the instructions given, as abstract propositions, are correct. Those in the record which were refused do not state the law correctly, and therefore were properly refused; or, if this is not so, we are unable to say, because of the absence of tbe evidence, that it was error to refuse them.

The affidavits filed iu support of the motion for a new trial possibly tend to show surprise; that is, the claim is that counsel for the defendant did not have the opportunity to consult with his client and prepare his defense before the trial. But no application for a continuance on this ground was made. The case was called for trial, and no objection was made by the defendant’s counsel that be was not, for any reason, ready to proceed. Besides tbis, in our opinion, the affidavits are clearly insufficient in other respects.

Affirmed.  