Appellant files a motion setting up that he was mistaken as to the date of the original submission of this case, and for that reason did not brief it. The appeal was filed in this court on August 8, 1924, and was not submitted until May 1925. This would seem to be ample time in which to prepare and file brief, the points raised being simple, and there being but two bills of exception in the transcript.
Bill of exceptions No. 1 complains of the refusal of a new trial sought apparently because of alleged misconduct of the jury. The trial term of the court below ended on June 2, 1923, and the bill of exceptions referred to embodying the testimony heard by the court on the presentation of the motion for new trial, was not filed until August 15, 1923. Such a bill of exceptions we have uniformly held must be filed during term time. We have looked over the bill, how ever, and if it had been filed properly and was before us, we would be compelled to hold that it presents no error because the testimony heard was conflicting and being primarily for decision of the trial judge, his action would be considered as binding upon us.
The only other bill of exceptions was taken to the fact that the State asked a witness to detail the circumstances of the finding of a still and equipment at a certain house where the defendant was working some weeks before the time of the alleged sale, and to witness being asked as to the discovery of another still. There is nothing in the bill making manifest the error of the matters thus objected to. In the absence of some facts stated showing that the testimony was not material to any issue in any way, we cannot appraise the value of such objection. The rule is well settled in this State that every bill of exceptions must make plain the error of the matter therein complained of, and the bill under consideration fails to measure up to this well settled rule.
Being of opinion that the setting aside of the former judgment and the granting of a rehearing merely to enable appellant to file a brief in the case would be of no benefit to him, and observing that no brief has been filed in support of the motion for rehearing, same will be overruled.
Overruled. *Page 664