In his motion for rehearing appellant insists that a continuance should have been granted him, and that we erred in upholding the action of the trial court in refusing to transfer this cause to the juvenile court. We correctly said in the opinion that the decision of the question of juvenility was for the trial judge, this being of course subject to revision by this court upon appeal. An examination of the record discloses that the only witness introduced by appellant in his behalf on this point was his father, who testified that appellant was born in November, 1905. This being true, appellant would have been under seventeen years of age at the date of his trial. As rebutting this testimony of appellant's father, it appears that school and census records, including a statement made by appellant's mother, were introduced by the State, all of which showed that appellant while only sixteen years of age at the time of the commission of the offense in September, 1921, became seveteen in November, 1921, and was, therefore, not a juvenile at the time of the trial in 1922. In addition to the above evidence, it was shown that when arrested and charged with this offense in September, 1921, appellant himself stated that he was then sixteen years of age. If this was true he became seventeen in November 1921, and was, therefore, not a juvenile at the time of this trial. The evidence being conflicting upon this issue, its decision was for the trial court, and we do not think our opinion erroneous in holding that there was sufficient evidence before said trial court to justify his decision against appellant on this issue.
The only evidence attributed to the father and mother of appellant in their application for continuance based on their absence, was that if present they would testify that he would not be seventeen until November 1922. This evidence was immaterial to any issue in the case save that relating to whether he should be tried as a *Page 354 juvenile or otherwise. When the latter issue was being tried appellant's father was present. The testimony of the absent witnesses not shedding light upon any material issue in the case as tried before the jury, no error could arise from the refusal of such continuance.
The motion for rehearing will be overruled.
Overruled.