
    O’LEARY v. STATE.
    (No. 12126.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    Ballowe & King, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for robbery; punishment being 99 years in the penitentiary.

Appellant was indicted under the name of Albert Martin, but suggested in open court that his .true name was Frank O’Leary, whereupon the indictment was amended to conform to the suggestion. Article 496, 0. C. P.

One night in’February, 1928, a man entered a drug store operated by J. E. Bentley in the city of Dallas and by the use of two pistols robbed Bentley of more than $100. Upon tbe trial appellant was positively identified by a number of people as tbe robber.

Appellant filed an application for postponement, averring therein that be was in Kansas City, Mo., at tbe time of tbe robbery in Dallas and asked for time to take tbe depositions of a number of named witnesses by whom be said proof of bis presence in Kansas City at the time in question could be made. Tbe application was denied. This action of tbe court was made tbe subject of complaint in the motion for new trial, attached to which were tbe affidavits of a number of tbe Kansas City witnesses supporting the averments in tbe application. A serious question might be presented if complaint at tbe denial of postponement bad been brought forward by bill of exception, but none is found in tbe record. It has been tbe long and consistent bolding of this court that tbe action of tbe lower court in refusing a postponement or continuance would not be reviewed, unless brought forward by bill of exception, and that it is not sufficient to complain of such action in tbe motion for new trial. The reasons for this holding appear in many of tbe cases dealing with the subject and it is not necessary to again elaborate. Many cases are collated under section 304, Branch’s Ann. Tex. P. C., beginning with Nelson v. State, .1 Ter. App. 41. Recent cases are Turner v. State, 109 Tex. Cr. R. 301, 4 S.W.(2d) 58; Miller v. State, 93 Tex. Cr. R. 163, 246 S. W. 87.

Tbe judgment is affirmed..  