
    WALLACE v. STATE.
    (No. 12237.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    J. S. Kendall, of Munday, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for rape; punishment being 50 years in the penitentiary.

We'find no necessity for setting out the evidence in detail. The facts make a complete case of guilt. Appellant’s confession left little, if anything, to he -supplemented by the other testimony.

There are no bills of exception in the record. In his motion for new trial, appellant complains, among other things, because his application for continuance was not granted. The application is before us by supplemental transcript. It has many times been held that the refusal of a continuance will not be reviewed in the absence of a bill of exception bringing the matter forward. For collation of authorities, see section 304, Branch’s Ann. Tex. P. C. Among later cases upon the same subject will be found Martin v. State, 92 Tex. Cr. R. 124, 242 S. W. 234; Miller v. State, 93 Tex. Cr. R. 163, 246 S. W. 87; Turner v. State, 109 Tex. Cr. R. 301, 4 S.W.(2d) 58.

Another ground of the motion for new trial avers that error was committed by the trial court in permitting appellant’s wife to testify to incriminating facts against him. We find no bill bringing any such complaint forward. Some other questions are suggested in. appellant’s brief, but they likewise ate not properly before us.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In order that the accused may plead to the indictment, and his identity be fixed, it is provided in articles 491-493 of our C. C. P. that, after the lapse of two entire days after service of a copy of the indictment, or when same is waived, the accused shall be arraigned. Nothing in our law undertakes to say when such arraignment shall take place, save that it cannot legally take place until two entire days have passed after service of copy of the indictment, as fixed by the terms of article 493, supra.

Fro-m the record in this case, we learn that the arraignment was had on August 17th, which was two entire days after service of a copy of the indictment upon appellant. In argument it is urged that the trial court appointed an attorney, this being a capital ease, before arraignment, and it is insisted that this violated tlie provisions of article 494, C. C. P., wherein it is provided that when arraigned, if it appear that accused has ne counsel, and is too poor to employ one, the court shall appoint one. Such appointment is an act of grace on the part of the state, and, it being a matter of human experience that the longer the time allowed to prepare a case for trial, the better, it appears not a matter for complaint but commendation, that counsel was appointed before the arraignment, and was! thus given longer time to get ready to properly represent the accused.

We are not able to accept the views of learned counsel for appellant that the court below has no power to make such appointment before the day of arraignment, tinder many decisions the time of arraignment is held to be npt so fixed by statute as that failure to arraign at once after the two days’ service of a copy of the indictment would be reversible error.

W© again say that the objections to the refusal of a continuance, to the character of cross-examination of appellant’s wife, and to complaints of procedure in other matters, cannot be reviewed by us in the absence of bills of exception. There are no bills of exception in this record.

The motion for rehearing will be overruled.  