
    (February 21, 1895.)
    STATE v. O’DONALD.
    [39 Pac. 556.]
    Defective Record on Appeal. — A record on appeal which does not comply either with the statutes or with the rules of this court will not be considered.
    Instruction — Exception to must be Before Verdict to be Considered. — Where instructions are given by the court upon its own motion they must be excepted to before verdict to be considered here.
    (Syllabus by the court.)
    APPEAL from District Court, Bingham County.
    E. P. Blickensderfer, for Appellant.
    
      The court should have granted appellant’s motion for a. continuance. A sufficient showing of diligence in the attempt, to procure the attendance of witnesses was made, and the court should not have jeopardized this man’s liberty by refusing his reasonable request for a continuance in order to procure witnesses to prove so important a fact as his absence from the place when the alleged crime was committed. (Harrington v. State, 31 Tex. Or. 577, 21 S. W. 356: Gum v. State, 21 S. W. 44; Arrington v. State, 20 S. W. 927; Hyden v. State, 31 Tex. Or. 401, 20 S. W. 764.)
    George M. Parsons, Attorney General, for the State.
    The defendant moved the court for a continuance, which motion was on the following day overruled by the court, to which ruling the defendant then and there excepted. If the defendant desired to avail himself of this exception on appeal, the exception taken should have been brought before this court by bill of exceptions, properly signed and settled. Not being so. presented, it cannot be entertained by this court. (People v.. Ashnouer, 47 Cal. 98, 99; People v. Weaver, 47 Cal. 106-108;. People v. Williams, 45 Cal. 27; People v. Waters, 1 Idaho, 560,. 561; People v. Marks, 72 Cal. 46, 47, 13 Pac. 149.)
   HUSTON, J.

The defendant was convicted of the crime of burglary. Appeal is taken from judgment and sentence thereon. No bill of exceptions appears in the record. In fact, there' is no record, such as is contemplated by the statute. Unless, the record show's a substantial compliance with the statutes and the rules of this court, it will not be considered. What purports to be the record is merely a copy of the information, a. copy of three affidavits by defendant, and one by his wife, in support of a motion for a continuance, the motion for a continuance, and the order of the court overruling the same, the' instructions of the court, to which no exceptions were taken,, the verdict, and judgment thereon. The action of the court in overruling the motion for a continuance was correct. The-instructions to the jury were all given by the court upon its-own motion, and no exception was taken thereto. The appeal in this case is, or at least from the record appears to be, a mera scramble, and the most scrutinizing examination thereof fails to develop any merit whatever. The counsel who represents the defendant in this court did not, as he assures jis, have anything to do with the trial, or the preparation of the appeal, and should not, therefore, be held responsible for the condition of the record. The judgment of the district court is affirmed.

Morgan, C. J., and Sullivan, J., concur.  