After examination of the record in this case I am fully satisfied that the judgment should be affirmed. However in my opinion assignment of error numbered "1" that "the trial court erred in denying defendant's motion for a continuance" is not here for review. The rule is well established that where the substance of the motion for a continuance does not appear in the record, files, minutes or transcript, the motion is not subject to review. (I. C. A., sec. 19-2301.) Likewise the court's ruling on a motion for a continuance is assumed correct where the showing made in support of such motion is not before the appellate court for review. (State v. Leavitt, 44 Idaho 739,749, 260 P. 164; State v. Murray, 43 Idaho 762, 254 P. 518;Hadley v. State, 25 Ariz. 23, 212 P. 458.)
No prejudicial error was committed by the trial court in the admission or exclusion of evidence.
When the instructions are considered as a whole, those given state the law as applied to the facts and those rejected were properly refused.
The evidence is amply sufficient to support the verdict of the jury and the judgment of the court based thereon.
Petition for rehearing denied. *Page 375
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 376