If a bill of exceptions had been saved to the action of the court in overruling defendant’s application for continuance, we would feel strongly inclined to reverse the judgment in order that he might produce the testimony of the absent witness on another trial. But no bill of exceptions was saved. Without a bill of exceptions this court has no authority to revise the action of the lower court in the matter. Such has been the uniform rule in this State for so many years, and has been iterated and reiterated in so many decisions of the courts, that it is a subject of surprise that it should be overlooked by counsel, or that we should be urged to act in the face of the rule. (Harris v. The State, 6 Texas Ct. App., 97; Plumley v. The State, 8 Texas Ct. App., 530; Taylor v. The State, 12 Texas Ct. App., 489.)
With the evidence just as it appears in the statement of facts, the learned judge who tried the case committed no error in declining to charge upon a lower grade of offense than murder in the second degree. (Neyland v. The State, decided at the present term, ante, p. 537.) As given, the charge was applicable to the facts, and was a sufficient and a correct enunciation of the law. (Cox v. The State, 41 Texas, 3.)
Complaint is made that the court erred in overruling defendant’s motion for new trial, based in part upon newly discovered evidence. If the witness McGloskey was present at the difficulty, then defendant must have known, or could easily have ascertained the fact; and if he knew, or could by ordinary care *611and effort have known this fact, then the evidence does not come within the rules of newly discovered testimony, nor does defendant show such diligence as would entitle him to a new trial upon this ground. (Burns v. The State, 12 Texas Ct. App., 270; Clark’s Crim. Laws of Texas, pp. 571, 572, 573, and notes.)
So far as it is legitimately a subject for revision, the record before us discloses no reversible error, and the judgment is therefore in all things affirmed.
Affirmed.
Opinion delivered March 17, 1883.