ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.Appellant renews complaint because the trial court refused his application for continuance based upon the absence of the witness Billie Barber. In our original opinion we said there was no averment in the application that the evidence could not be procured from any other source. In this we were in error. There is such an averment in the application, but we adhere to the conclusion reached that the trial court properly denied the continuance. Furthermore, we think the point was not properly before us and might have been ignored entirely. No bill of exception is brought forward complaining of the action of the court regarding the continuance. We find on the bottom of the application for continuance the following notation over the trial judge’s signature. “Defendant’s motion for continuance overruled. Defendant excepts.” Such a notation does not preserve the point. 4 Tex. Jur., Sec. 151, p. 211 and 212; Williams v. State, 94 Tex. (3r. R. 60, 249 S. W. 852, and cases there cited; Meyers v. State, 109 Tex. Cr. R. 130, 3 S. W. (2d) 438. The reason for the holding is clearly stated in the Williams case. See also, Turner v. State, 109 Tex. Cr. R. 301, 4 S. W. (2d) 58; Branch’s Ann. Tex. P. C., Sec. 304; Pinkston v. State, 91 Tex. Cr. R. 644, 241 S. W. 152; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215; Fields v. State, 63 Tex. Cr. R. 283, 139 S. W. 978.
Appellant also insists that an issue was raised as to a variance in the name of the injured party as alleged and proven, and that such issue should have been submitted to the jury. Our attention is called to the fact that in Stokes v. State, 46 Tex. Cr. R. 357, 81 S. W. 1213 (cited in our original opinion) that the court submitted a charge on the issue of variance. The defendant in that case asked a special instruction on the issue which the court gave. In discussing the question this court referred to Art. 444 C. C. P. (now Art. 401) which in part reads: “When a person is known by two or more names it shall be sufficient to state either name.” This court then observed, “The court seems to have required more in the instruction than is *223demanded by the statute.” No special instruction was requested in the present case. If appellant relied on his exceptions to the charge we entertain grave doubts of them being sufficiently specific under the requirements of Art. 658 C. C. P. to call the trial court’s attention to the contention now made by appellant. One exception reserved to the charge was for “submitting to the jury the issue of theft of property belonging to Mrs. George B. Simmons because there is fatal variance between the allegations and proof upon said issue.” It was appellant’s contention in the court below and upon appeal that if guilty at all it was of embezzlement or swindling and not theft. From the exception mentioned the trial court could have reasonably understood that the variance claimed referred to that contention and not a claimed variance as to the name of the injured party.
The indictment alleged the injured party’s name to be “Mrs. George B. Simmons.” Reference to the statement of facts reveals that when Mrs. Simmons was called to the witness stand she testified: “My name is Mrs. George B. Simmons * * * my maiden name is Rachel.” Later in the trial she was recalled to the stand and said, “I am the same Mrs. George B. Simmons that testified in this case yesterday.” We find that all through the testimony she is called only “Mrs. Simmons,” except that one witness referred to her as “Mrs. Rachel Simmons.” It is upon the testimony as indicated that appellant bases his claim of variance. We are of opinion the issue was not raised. Hensley v. State, 101 Tex. Cr. R. 31, 274 S. W. 135 is a case almost exactly like the present one, and the holding there supports our conclusion here.
It is again urged that the evidence does not support a conviction of theft by false pretext. This has caused us to further consider the facts brought forward. They are sufficiently set out in our original opinion. It occurs to us that they lead to the inescapable conclusion that appellant and his companions entered into an elaborate plan with the ultimate purpose to secure from Mrs. Simmons her money, and that all their dealings with her were fraudulent and accompanied with thinly veiled false pretexts to accomplish their designs.
The motion for rehearing is overruled.