Appellant's punishment was assessed at ten years' confinement in the penitentiary, for the offense of murder in the second degree.
The statement of facts, having been filed subsequent to the time allowed by order of the court for that purpose, can not be considered an appeal. The failure to file same in proper time is not sought to be explained.
In the absence of the testimony, we are unable to say the facts set up in the application for a continuance are material and probably true. Appellant may have been between 16 and 17 years of age at the time of the homicide, and his character two years prior thereto may have been good at Vinita, in the Indian Territory, as a peaceable boy, and yet have no material bearing on any issue raised upon his trial. When an application for continuauce is refused, and such ruling of the court is sought to be revised on motion for new trial, or on appeal, the materiality and probable truth of the absent testimony must in some way be made to appear to the tribunal whose revisory power is invoked.
As the record is presented to us we find no error, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.