
    MARTIN v. STATE.
    (No. 6489.)
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1921.
    Rehearing Denied June 21, 1922.)
    1. Criminal law @=1090(7) — In absence of bill of exceptions, refusal of continuance not con- . sidered.
    An objection to the overruling of an application for a continuance because of the absence of a witness cannot be considered on appeal, where no bill of exceptions appears in the record saving the point.
    2. Criminal law @=>(090(19) — Recital in judgment that defendant excepted is not a bill of exceptions.
    A recital in a judgment that defendant excepted or a complaint in 'the motion for a new trial is not a bill of exceptions.
    3. Criminal law <§=598 (3) — Continuance to secure witness residing in Oklahoma refused where no effort was made to take deposition.
    Application for continuance to secure absent witnesses, showing that witness resided in Oklahoma, and that defendant wrote him to be present, but showing no effort to have his deposition taken, did not show sufficient diligence.
    Appeal from Gregg-County Court; W. A. Ray, Judge.
    P. B. Martin was convicted of embezzlement, and appeals.
    Affirmed.
    P. B. Martin, of Longview, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of embezzlement, and the punishment assessed at one hour in jail.

The information alleged that appellant was attorney for L. M. Key, and that as such attorney $11.32 had come into his possession, and that he had embezzled same.

An application for continuance was filed by appellant on account of the absence of one J. D. Jackstone, which the court overruled. This is assigned as error in motion for new trial, but no bill of exceptions appears in the record saving the point.

“In the absence of a proper bill of exceptions, the supposed error in overruling an application for continuance will not be revised on appeal, and a recital in the judgment that defendant excepted or a complaint in the motion for new trial is not a bill of exceptions.” Branch’s Anno. P. C. vol. 1, p. 183, § 304, and authoi'ities collated.

Even if the application could be considered, it is deficient in not showing diligence. It avers that the witness resides in Oklahoma ; that appellant wrote him to be in attendance upon the court as a witness. No elf or t appears to have been made to have his deposition taken.

Complaint is made that the evidence does not support the conviction. The state’s evidence is ample for that purpose. Appellant’s testimony presented a theory to the jury upon which they might have released him. As it was their province to do; they decided the issue of fact against him.

The judgment of the trial court is affirmed.  