
    MILLER v. STATE.
    (No. 7288.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1922.)
    1. Criminal law <©=1090(7) — In the absence of bill of exceptions, appellate court will not consider refusal of continuance as ground for reversal.
    The failure to reserve a bill 'of exceptions to the action of the court in overruling a motion for a continuance precludes a consideration of the application as .an independent ground for reversal.
    2. Criminal law <S=594( I) — Motion to continue held properly overruled.
    Where accused was indicted on the 14th day of May, 1920, and after being arrested and released on bail failed to appear for trial, but disappeared and was rearrested, and he did not apply for process to serve on his witness until one day before the day of the trial, and the affidavit of the witness stated he would not give the testimony set out in the motion to continue, held, that the motion to continue was properly overruled.
    Appeal from District 'Court, Anderson County; W. R. Bishop,. Judge.
    Yirgil Miller was convicted of rape, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for rape; punishment fixed at confinement in the penitentiary for a period of 15 years.

A statement of the evidence is deemed unnecessary; suffice it to say that it is quite sufficient to support the verdict.

A motion for a continuance was made, but no bill of exceptions was reserved to the action of the court in overruling it. This precludes a consideration of the application as an independent ground for reversal. Nelson v. State, 1 Tex. App. 44; Grant v. State, 3 Tex. App. 2; and other cases listed in Branch’s Ann. Tex. Penal Code, § 304. If the action of the court in refusing the continuance he considered in connection with the motion for new trial, it is apparent from the record that the motion to continue was properly overruled.

The appellant was indicted on the 14th day of May, 1920, and was soon after arrested and released on bail. His ease was set for trial on the 13th day of June, 1920, and then reset for the 30th of that month. He failed to appear for trial, but instead disappeared. He was rearrested on June 1, 1922. nis trial was set for the 15th day of that month. No process was applied for until the 14th’ of that month. The absent witness resided in another county. Process was not served. The affidavit of the witness, to the effect that he would not give the testimony set out in the motion to continue, is attached to the state’s contest of the motion for new trial.

The judgment is affirmed.  