The discussion of the refusal of the court to strike out the controverting affidavit of the State to the appellant's application for continuance is somewhat academic inasmuch as the court would have had a perfect right to hear evidence on the matter, and his action would have been upheld by us in the absence *Page 311 of such affidavit. However, to the authorities cited in support of his part of the court's opinion will be added Hyde v. State,16 Tex. 445; Murray v. State, 1 Texas Crim. App., 174; Merritt v. State, 2 Texas Crim. App., 181; Dixon v. State, 2 Texas Crim. App., 533; Vickery v. State, 7 Texas Crim. App., 402. We regard the matters set up in the controverting affidavit of the prosecuting attorney as affecting diligence. One who seeks a continuance because of the absence of a fictitious person, or one who is dead, or one whose attendance can never be secured, could hardly be said to have exercised diligence in his effort to prepare his case for trial, and would not be inclined to hold the court without power to inquire into and hear evidence upon such matters, an dif satisfied from the evidence heard that the condition named above existed, a continuance would be rightly refused. The authorities cited by appellant in support of this part of his motion correctly hold that the truthfulness, etc., of the absent testimony, which would be questions for the jury and not the court, cannot be made the subject of controverting affidavits and may not be tested by the introduction of evidence and decided by the court when the application is presented.
We are of opinion that no error was committed in the selection of the special venire. Cottle County does not appear to be under the jury wheel law. Harris v. State, 241 S.W. Rep., 177, fully discusses the proposition involved.
Appellant further combats cur conclusion that the complaints evidenced by his bills of exception Nos. 5 to 14 present no questions materially affecting the correctness of the judgment rendered. The earnestness with which this proposition is presented has caused us to again carefully examine said bills, but without any change in our conclusion as to the matter. In addition to the reason given in the original opinion that the matters complained of were not such as to materially affect the result, a re-examination of said bills discloses that bills 7, 8, 9, 10, 11, 12, 13 and 14 merely present complaints of a question and answer without any surrounding or connecting facts, or the certification of the lack of pertinence and materiality from the circumstances and surroundings, as would enable this court to weigh the propositions contained in said several bills of exception. To set out the question asked the witness and the answer of the witness and that same is objected to because it is immaterial, irrelevant, and prejudicial, without any other statement of the facts in evidence or matters which would render said testimony objectionable or inadmissible, does not put the bills of exception in such shape as that this court can consider same. A bill which compels this court to search through the statement of facts in an effort to lacate some matter which would affect the admissibility vel non of evidence complained of, will not be allowed. Thompson v. State, 90 Texas Srim. Rep., 15; Clark *Page 312 v. State, 90 Tex.Crim. Rep.; Rainey v. State,89 Tex. Crim. 293. Authorities without number might be cited holding that a bill is not sufficient which does not in itself reveal the error of the matter complained of.
Believing the case correctly decided in the first instance, and that the motion is without merit, same will be overruled.
Overruled.