Smith v. State

DAYIDSON, Judge.

Appellant’s punishment was assessed at ten years’ confinement in tbe penitentiary, for tbe offense of murder in tbe second degree.

Tbe statement of facts, baying been filed subsequent to tbe time allowed by order of tbe court for that purpose, can not be considered an appeal. Tbe failure to file same in proper time is not sought to be explained.

In tbe absence of tbe testimony, we are unable to say tbe facts set up in tbe application for a continuance are material and probably true. Appellant may have been between 16 and 17 years of age at tbe time of tbe homicide, and bis character two years prior thereto may have been good at Yinita, in tbe Indian Territory, as a peaceable boy, and yet have no material bearing on any issue raised upon bis trial. When an application for continuance is refused, and such ruling of tbe court is sought to be revised on motion for new trial, or on appeal, tbe materiality and probable truth of tbe absent testimony must in some way be made to appear to tbe tribunal whose revisory power is invoked.

As tbe record is presented to us we find no error, and tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.