
    (86 Tex. Cr. R. 386)
    LEMCKE v. STATE.
    (No. 5558.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1919.) .
    1. Criminal law &wkey;>1118--BiLL of exceptions TO DENIAL OF NEW TRIAL INSUFFICIENT.
    A bill of exceptions to the refusal of the. trial court to postpone or continue the case, because of the absence of a witness named, presents no error, where the record contains no application for such continuance, and no order overruling the same, and the bill sets up nothing that appellant expects to prove by the witness, and nothing -with regard to the diligence used to obtain his presence at the trial.
    2. Criminal law <&wkey;728(5) — Special charge AS .TO IMPROPER REMARKS OF PROSECUTOR MUST BE REQUESTED.
    In a misdemeanor case, special charges must' be asked in writing directing the jury not to consider remarks made by prosecutor.
    Appeal from Matagorda County Court; John F. Perry, Judge.
    B. Lemcke was convicted of slander, and appeals.
    Affirmed.
    See, also, 202 S. W. 744.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

The appellant was convicted in the county court of Matagorda county of the offense of slander, and his punishment fixed at a fine of $100 and 30 days in the county jail.

There are three bills of exception in the record, one of which is to the refusal of the trial court to postpone or continue the case because of the absence of a witness named Krueger; but the record contains no-application for such continuance and no order overruling the same. The bill of exceptions sets out. nothing that appellant expected to-prove by said witness, and nothing with regard to the diligence used to obtain his presence; and the matter presents no error.

The two remaining bills complain of remarks made by the attorneys prosecuting, for the state. Appellant is charged with a misdemeanor, and "no special charges appear to have been asked in writing, directing the jury not to consider the matter complained of in the argument. This is necessary in misdemeanor cases. The court may have orally instructed the jury not to consider said matter, so far as the record shows; nor do we-think the matter complained of of sufficient moment to justify a reversal of the case, even if such a charge had been asked.

The évidence supports the verdict, and the judgment of the lower court will be affirmed.  