The appellant was indicted, tried and convicted *Page 201 in the Criminal District Court of Nueces County for transporting intoxicating liquor and his punishment assessed at two years' confinement in the penitentiary.
The record in this case discloses only two bills of exception, the first complains of the action of the court in overruling appellant's subsequent motion for a continuance, and the second bill complains of the court's action in overruling his motion for a new trial. The motion for continuance was made to obtain the testimony of Owen Dunn. The record discloses that appellant was arrested and gave bond on May 5th, 1924, and no effort to have said witness subpoenaed was ever made until a few days before the case was called for trial on November 19, 1924. The application for a continuance states the witness promised to be present to testify, and it appears he was relying upon said promise until a few days before the case was called for trial, then attempted to locate said witness for the purpose of subpoenaing him but never succeeded in having him served with any process. We think the record in this case fails to show proper diligence, and that the trial court committed no error in overruling the application for a continuance nor in refusing a new trial by reason thereof.
The second bill of exception fails to show any error of the trial court in overruling motion for a new trial. There are other matters complained of in appellant's brief, but no exceptions in the record covering same, which preclude this court from considering them. After a careful consideration of the record, we are of the opinion that the judgment of the trial court should be and the same is hereby affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.