In this case in the original opinion we criticised appellant's counsel for sending to this court a statement of facts in question and answer form. Since then appellant's attorneys have had sent to us a statement of facts in narrative form, together with the certificate of the clerk stating, "the statement of facts hereto attached was filed in my office on November 7, 1911, but through error of this office the original stenographer's report was sent to the Court of Criminal Appeals instead of this statement of facts." This latter statement is prepared in accordance with the rules, is approved by the judge, and filed within the proper time, and we take pleasure in exonerating counsel from all blame or censure in the matter. Further, they send to us an order extending the time in which to file bills of exception, the certificate of the clerk stating: "I, K.S. Loving, Clerk of the District Court of Grayson County, do certify that the above and foregoing is a true and correct copy of the order as written by Judge J.M. Pearson; that said order is now on file, but through oversight was not copied in the transcript." Under such conditions, of course, appellant would be entitled to have his bills of exception considered and passed on by this court, but as in the original opinion we passed on the merits of each bill, we do not deem it necessary to do so again; however, we deemed these corrections due to appellant's counsel, so that it would not appear they were in anyway at fault.
Appellant earnestly insists that we erred in holding that the court did not err in overruling the application for a continuance. We have again read the record, and in view of the testimony of appellant and his witness Shaw on the trial of the case, there was no error in overruling the application. (Wigfall v. State, 57 Tex.Crim. Rep.; Boyd v. State, 50 Tex. Crim. 138. )
In the motion for a rehearing appellant for the first time attacks *Page 502 the sufficiency of the indictment, because it does not allege the date of the election on prohibition. The complaint comes too late. (Hamilton v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 348; Meyer v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 919.)
All the other questions were passed on in the original opinion except wherein appellant seeks in the motion for a rehearing in this court to complain of paragraphs of the court's charge for the first time. These we can not consider, as the law says such matters must be presented by a bill of exceptions, or in the motion for a new trial in the trial court.
The motion for rehearing is overruled.
Overruled.