At a former day of the term the appeal was dismissed because the record then before us failed to show that any notice of appeal was given. Appellant, in connection with his motion to re-instate the appeal has filed a supplemental transcript which shows that notice of appeal was in fact entered but was inadvertently omitted from the transcript. The appeal is re-instated and the case will now be considered on its merits.
Only one bill of exception appears in the record. It complains at the order of the court in overruling the motion for new trial and attempts to bring forward by the motion matters which should be presented by bill of exception reserving complaint at rulings of the court during the trial. It has been held many times that such matters cannot be brought forward simply by setting up complaint in motion for new trial. (See Jones v. State, 9 S.W.2d 347, and authorities cited.)
One of appellant's chief complaints as indicated by his motion for new trial appears to be that the court declined to grant an application for continuance or postponement. Such application — if presented — is not brought forward by a separate bill, and is not even incorporated in the motion for new trial. In the absence of a bill of exception which incorporates the application for delay this court must assume that the trial court's action in overruling the request was correct. Martin v. State, 92 Tex.Crim. R., 242 S.W. 234; Miller v. State, 93 Tex.Crim. R., 246 S.W. 87; Turner v. State, 4 S.W.2d 58. See also Branch's Ann. Tex. P. C., Sec. 304.
Appellant attaches to his motion for new trial affidavit of several witnesses whose evidence would have been admissible as impeaching the prosecuting witness on the issue of veracity, but nowhere in the motion for new trial is it averred that these witnesses had been "newly discovered," or that the other impeaching evidence suggested had only been discovered since appellant's trial. Ordinarily a reversal will not be ordered for impeaching evidence, even though it be "newly discovered." (See Branch's Ann. Tex. P. C., Sec. 202, for collation of authorities.)
We also observe that the affidavits attached to appellant's motion seem to have been taken before one of the attorneys who appears of record as representing appellant. Scott v. State,65 Tex. Crim. 40, 143 S.W. 610; Kellum v. State, 91 Tex. Crim. 664,240 S.W. 1109; Siebe v. State, 92 Tex.Crim. R.,244 S.W. 1013; Gibbs v. *Page 278 State, 99 Tex.Crim. R., 268 S.W. 736; Branch's Ann. Tex. P. C., Sec. 194.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.