
    MASON v. STATE.
    (No. 5057.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    1. Criminal Daw <©=31099(5) — Appeal—Sep- . ARATION OP JURY^-KeVIEW.
    Evidence as. to the separation of the jury cannot be considered where the statement of facts was approved after adjournment, but to have such evidence considered it must be filed during term time.
    2. Criminal Law <©=>603(11) — Continuance —Diligence.
    Where an indictment was returned on August 3, 1917, and defendant’s process for witnesses was not issued until February 4, 1918, and judgment was entered on February 8, 1918, and there was no reason why process could not have issued earlier, and where the testimony was known to defendant either before or at the time of the homicide, the application for continuance did not show diligence.
    3. Criminal Law <©=>1090(19) — Overruling op Motion por New Trial — Bill op Exceptions.
    A bill of exceptions reserved to the action of the court in overruling a motion for ne.w trial setting out an application for a continuance, where no exception was taken to the overruling of the application for a continuance, does not add any strength to it.
    Appeal from District Court, Trinity County; E. A. Berry, Judge.
    Will Mason was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at seven years’ confinement in the penitentiary.

In the statement of facts is found evidence with reference to the separation of the jury. The statement of facts was approved on the 17th of April, the court having adjourned some time before that date. The evidence with reference to the separation of the jury, under a long line of decisions, cannot be considered. In order to have this, character of evidence considered it must be filed during term time.

We are impressed that the .application for continuance does not show diligence. The indictment was returned on the 3d of August, 1917. The process for the witnesses was not issued by the defendant until February 4,1918. The judgment was entered on February 8,1918. This would not indicate diligence. There is no reason shown why process was not issued earlier. The testimony seems to have been known to appellant at least at the time of the homicide, and some .of it prior to the homicide. Exception was not taken to the overruling of the application for continuance, unless it be considered in the bill of exceptions reserved to the overruling of the motion for new trial. The application for continuance is set out in the motion for new trial as well as in the previous part of the record, and the bill was reserved to the action of the court overruling the motion for new trial. The decisions are to the effect that a bill of exceptions reserved to the action of the court overruling the motion for new trial does not add any strength to' it. The evidence, we think, is sufficient to support the conviction.

The judgment will be affirmed. 
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