In a motion for rehearing by appellant it is urged that we did not consider the errors of the trial court in overruling appellant's application for a continuance; and in overruling *Page 63 his motion to quash the jury array. The record does not show any order of the court in either regard, nor is there any bill of exceptions presenting complaint thereof. Appellant insists that his exceptions as to both appear in the record and refers us to the judgment of the court below wherein we find it stated that the trial court had overruled the defendant's motion to quash the jury array and defendant's motion for continuance, to which the defendant excepted. Further than as just stated no other exception appears to the court's action upon either of said motions.
We held in Caldwell v. State, 2 Texas Crim. App. 53; Wakefield v. State, 3 Texas Crim. App. 39, and Asbeck v. State,70 Tex. Crim. 225, 156 S.W. Rep. 925, that a recitation in the judgment that the accused excepted to the refusal to quash the venire, was not sufficient to take the place of a bill of exceptions. So also in Hollis v. State, 9 Texas Crim. App. 643; Gaston v. State, 11 Texas Crim. App. 143; Prator v. State, 15 Texas Crim. App. 363, and Wesley v. State, 60 Tex. Crim. 299, we held that a recital in the judgment or minutes that a continuance was refused to which defendant excepted, would not supply the place of a bill of exceptions. We are unable to see any good reason for doubting the soundness of the rulings in each instance. A bill of exceptions presented to the trial court for approval brings the matters complained of before the lower court in a manner that appropriate explanation or qualification may be made if proper. For illustration, the absent witnesses may have appeared during the trial, and this fact being shown by the court's qualification, no error would appear.
Being unable to accept either contention of appellant, his motion for rehearing will be overruled.
Overruled.