The plaintiff in error filed an extraordinary motion for a new trial, alleging, in part, that on June 14, 1920, he was tried and convicted of a misdemeanor; that during the same term of the court he filed a motion for a new trial on the general grounds; that on November 5 his motion for a new trial was dismissed; that “ the reason that he did not prepare and file a *632brief of evidence in said case prior to tlie time it was dismissed was that the State’s counsel had a part of the evidence which was adduced on the trial of the case, and would not produce the same, and movant was unable to prepare and file a brief of evidence without the documentary evidence introduced in said case, which ivas held in possession of counsel for the State; ” that he did not have any notice of the date fixed for the hearing by the court when the original motion was dismissed, and that the alleged errors complained of in the original motion have never been determined by the court. In the extraordinary motion it was prayed “ that State’s counsel be required to turn over to movant, for the purpose of preparing and filing said brief, the documentary evidence adduced on the trial of said cause.” This extraordinary motion for a new trial was set for a hearing at 9 o’clock a. m. on January 8, 1921. At that time the defendant’s counsel moved for a continuance, on the ground that he was not ready for the hearing, and the court refused the continuance, and on the same day passed the following order: “The within and foregoing motion coming on for a hearing, and, no brief of evidence having been filed and approved, the within motion is hereby dismissed.”
The court did not err in overruling the motion for a continuance or in dismissing the extraordinary motion for a new trial.