
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1913.
    Rehearing Denied March 12, 1913.)
    1. Criminal Daw (§ 593) — Continuance-Grounds — Discretion.
    Denial of application for continuance, because defendant’s attorney was temporarily out of the state and had made no arrangement for trial, believing that he would return in time to try the case, was not such an abuse of discretion that it would authorize reversal of a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1320; Dec. Dig. § 593.]
    2. Criminal Law (§ 603) — Continuance-Absence of Witnesses — Application.
    ' An application for a continuance for absence of witnesses, failing to show what was expected to be proved by them, their residences, or that any diligence had been used to get them, was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    3. Criminal • Law (§ 921) —Appeal—Bills of Exceptions — Necessity.
    Objections to testimony must be made at the time it is offered, and bills of exceptions then taken; and it is too late to complain, for the first time, on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2206-2209; Dec. Dig. § 921.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Dilmous Davis was convicted of assault with intent to rape, and he appeals.
    Affirmed.
    Harmon & Baker, of Dallas, for appellant. C. E. Lane, As'st. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

From a conviction of an assault with intent to rape, with a penalty fixed at 10 years in the penitentiary, the appellant appeals.

The evidence is clearly sufficient to justify the verdict. Appellant’s defense was alibi, which was correctly submitted by the court and found against him.

By one bill it is shown that appellant made an oral motion for a continuance. It is set out in the record. It is on two grounds: First. Because his attorney was temporarily out of the state or city, and made no arrangement for the case, believing that he would return in time to try it. Neither the bill nor the motion for continuance show any such ground as would justify the court to reverse this case on that account. Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309.

The other ground of the motion for continuance is on account of the absence of three witnesses. Neither the bill nor the motion in any way show what was expected to be proved by these witnesses, their residences, or that any diligence whatever had been used to get them. The court did not err in overruling the motion for continuance.

The record does not show that any exception whatever was taken to the introduction of any testimony during the trial. In the- motion for new trial several complaints are made to the introduction of testimony. The appellant merely has bills of exceptions to the overruling of his motion for new trial on these several grounds. This does not raise the question in such a way as that we can pass upon it. Objections1 to testimony must be made at the time it is offered, and hills then taken. If not, it is too late to complain, for the first time, in the motion for new trial.

In the motion for new.trial appellant complains that the court erred by failing to limit the testimony of Dee Taylor as affecting the credibility of tbe witness Sam Davis. No necessity is shown for this, either in the motion or elsewhere.

In like manner appellant complains that the court submitted to the jury to find whether one of the state’s witnesses, Dan Taylor, was an accomplice. The charge is not excepted to, other than that no charge on the subject was called for. Even if the testimony did not require the submission of this question to the jury, it is not shown, and we cannot see, how such a charge was prejudicial to appellant.

We have carefully considered all of appellant’s complaints, and in the way they are raised none of them present any reversible error.

The judgment is therefore affirmed.  