it very satisfactorily appears that the application for a continuance could not have been well founded in fact, it must afford an additional reason for refusing a new trial or to reverse the judgment on that ground. We may suppose a case where a sufficient application for a continuance, on account of the absence of a material witness, has been improperly overruled. Yet if it should turn out that, during the progress of the trial, the witness made his appearance and the defendant obtained the benefit of his testimony, it cannot be supposed that the court, upon the motion for a new trial, would not be at liberty to look beyond the affidavit; or that this court, upon appeal, must shut our eyes to the fact that the defendant has had the benefit of the testimony of his witness, and can have sustained no injury by the refusal of his motion for a continuance. Surely, in such a case, this court would not be required to reverse the judgment on that ground. Though we have considered the application for a continuance on its own merits, in the abstract, in order to be certain that no injustice had been done the defendant in refusing his motion, we have thought proper to look into the evidence embodied in the record; and we there find additional cause to be satisfied that the motion was not improperly refused. We forbear comment upon the evidence. It may suffice to say that several witnesses, who were eye-witness of the homicide, had ample means and opportunity of seeing and observing all that passed, and could not be mistaken as to the author of it, testified positively to the fact with such circumstantial particularity, and just such diversity as to immaterial matters which were not likely to make a strong, permanent impression, as to show that there was no collusion; and such perfect unanimity as to the material facts which were calculated to make a strong, abiding impression upon the memory as to show that they were not and could not be mistaken. It thus appears that there were other witnesses than those named in the affidavit by whom all the facts and circumstances attending the fatal scene could be abundantly proved; that the witnesses whose testimony was sought could not, if present, have testified to the truth of the fact proposed to be proved by them; and that the affidavit for a continuance, therefore, was not entitled to credit.

We have thus looked into the evidence upon the motion for a new trial, which necessarily brings it under review; and we advert to it, not as a ground for affirming the judgment of the court refusing a continuance, but as placing it beyond doubt that no injustice can have been done the defendant by refusing

his motion, which was rightly refused on the ground of its want of legal sufficiency.

The only remaining ground on which a reversal is asked is the ruling of the court in excusing persons from serving as jurors whose conscientious scruples in relation to capital punishment were held a sufficient cause for standing them aside on the motion of the district attorney. This question was sufficiently examined in the case of While v. State, 16 Tex. 206, at the present term, where it was held that excluding such persons from the jury was not error.

We are of opinion that there was no error in the judgment, and that it be affirmed.

Judgment affirmed.

CONTINUANCE OF CRIMINAL CASE IS DISCRETIONARY: McFadden v. Commonwealth, 62 Am. Dec. 308, and cases cited in the note 312. The discretion of the court in ruling upon a motion for a continuance is not an irresponsible one, but must be grounded upon laches or a reason to suspect that the object is delay: Myers v. State, 7 Tex. App. 643, 644, citing the principal case. THREE REQUISITES ARE NECESSARY TO ENTITLE PARTY TO POSTPONEMENT OF TRIAL, as stated in the syllabus. The principal case is cited on this point in Jackson v. State, 4 Tex. App. 296, 297. The party moving the continuance of a criminal cause on account of his inability to subpoena witnesses by reason of the recent finding of the bill, and his close confinement since his arrest, must show that he has certain witnesses, giving their names, and must state what he expects to prove by them, in order that the court may determine whether or not the testimony would be material: Roberts v. State, 58 Am. Dec. 528.

DUE DILIGENCE IN SEEKING TO OBTAIN PRESENCE OF WITNESS must appear before motion for continuance, on the ground of the absence of a material witness, will be granted: Hensley v. Lytle, 55 Am. Dec. 741, and note 743; Thompson v. Miss. Ins. Co., 22 Id. 129. An affidavit for a second continuance of a cause on account of the absence of a material witness, setting out as the diligence used that a subpoena had been issued after the commencement of the term and seven days before the trial, and returned the next day after issued not found, did not show sufficient diligence, notwithstanding it stated in addition that the witness was only temporarily absent without the procurement or consent of the affiant; and that had he known of the witness's intended absence he would have endeavored to have taken his deposition: Henderson v. State, 22 Tex. 596, citing the principal case.

COUNTER-AFFIDAVITS IMPEACHING DILIGENCE OF MOVING PARTY MAY BE READ: Rucker v. State, 7 Tex. App. 559, citing principal case. Counter-affidavits are admissible on applications for continuances to show want of diligence on the part of the applicant, or that the testimony cannot be obtained, and the code has not changed the rule since the decision of the principal case: Murry v. State, 1 Id. 178, 179.

ADMISSION AS TO WHAT WITNESS WOULD TESTIFY will not be sufficient ground for refusing the motion for a continuance if the application is otherwise sufficient, and it satisfactorily appears that the defendant is entitled to

the postponement: De Warren v. State, 29 Tex. 480, citing the principal case. An admission that an absent witness if present would swear to the facts expected to be proved by them is not sufficient to defeat a motion for a continuance on the ground of the absence of witnesses; the admission must be of the facts themselves: Smith v. Creason's Ex'rs, 30 Am. Dec. 688.

WHERE IT APPEARS FROM EVIDENCE ADDUCED AT TRIAL THAT NO INJUSTICE HAS BEEN DONE in overruling the motion for a continuance, this offers an additional reason why the verdict should not be disturbed on this ground: Willison v. State, 7 Tex. App. 400, citing the principal case. When a continuance has, in the opinion of counsel, been improperly refused, it is the regular course of practice to move for a new trial after the verdict has been rendered, when the judge can see more clearly the bearing of the testimony sought to be introduced, and can have an opportunity of correcting his error if convinced that he has committed one: McDaniel v. State, 47 Am. Dec. 744. PRESUMPTION IS IN FAVOR OF RULING OF COURT IN OVERRULING MOTION FOR CONTINUANCE, unless the contrary is shown by bill of exception: Meredith v. State, 40 Tex. 483, citing the principal case. The court will not revise the action of the court below in overruling an application for a continuance, unless the same is presented by bill of exceptions: Hollis v. State, 9 Tex. App. 646, citing the principal case. Error in judgment of court below will not be presumed by appellate court, but it must be clearly disclosed: Thompson v. Monrow, 56 Am. Dec. 318, note 319.

SCRUPLES OF JUROR AGAINST FINDING VERDICT OF GUILTY WHERE OFFENSE IS PUNISHABLE WITH DEATH form good ground of challenge: Note to Smith v. Eames, 36 Am. Dec. 532.

COMMON LAW IN CRIMINAL MATTERS, IN LOUISIANA, is adopted by statute: State v. McCoy, 41 Am. Dec. 301.

KIRK V. MURPHY.

16 TEXAS, 654.]

GENERALLY, IN CASE OF INABILITY OF SHERIFF TO EXECUTE PROCESS, the coroner, by virtue of his office, is authorized to act as his substitute; and where he has acted, the legal presumption is that the facts existed which rendered it proper for him to act in the particular instance.

OBJECTION THAT CHRISTIAN NAME OF ONE OF PLAINTIFFS IS INCORRECTLY STATED in copy of citation served on the defendant is properly overruled when it is correctly stated in the copy of the petition.

PLAINTIFF IN ERROR MUST BRING UP RECORD SO PRESENTING FACTS as that it may be seen on what state of case the court below acted, and if there be error, that it may be certainly seen in what it consists. FAILURE TO MAKE PART OF RECORD PAPER IN WHICH VARIANCE IS AL

LEGED TO EXIST, where there is a contradiction in the record as to what paper it occurs in, renders it uncertain in what the error, if any, consists, and therefore there will appear no ground for reversal.

No transcript being on file, no statement of the case can be given.

D. O. Norton, for the appellants.

S. H. Dearborn and S. M. Hyde, for the appellees.

By Court, WHEELER, J. The process was directed to the sheriff "or any lawful officer" of the county to execute and return. The sheriff being a party defendant to the suit, and consequently incapacitated to execute the process, it was competent for the coroner to execute it. Generally, in case of the inability of the sheriff to execute process, the coroner, by virtue of his office, is authorized to act as his substitute; and where he has acted, the legal presumption is that the facts existed which rendered it proper for him to act in the particular instance: Powell v. Wilson, 16 Tex. 59, lately decided at Galveston.

The plea in abatement to the service is not sworn to, nor does its truth appear by the record. The copy of the petition and citation in the possession of the defendant was not a part of the record; nor is it made a part of the record brought to this court by the bill of exceptions or otherwise. The plea and the bill of exceptions are contradictory; the former states that the variance is in the copy of the citation; whereas the latter represents the objection as having been taken to the copy of the petition. The plea itself ought, perhaps, to be taken as the best evidence of what it contained, and what the objection really was. And if the names of the plaintiffs were truly stated in the copy of the petition, that would sufficiently apprise the defendants who the plaintiffs really were, though there was a mistake in the christian name of one of them in the copy of the citation; and the objection was therefore rightly overruled. But we are of opinion that the objection to the service is not presented by the record in a manner to require revision. It devolves on the plaintiff in error to bring up the record, so presenting the facts as that it may be seen on what state of case the court below acted; and if there be error, that it may be certainly seen in what it consists. He should have made the copy in which the variance is alleged to consist a part of the record. The apparent contradiction in the record, and consequent uncertainty whether it was in the copy of the petition or citation, would then have been removed, and the case would have been properly presented for revision. But as it is uncertain, from the record, in what the error, if any, consists, it can afford no ground for reversing the judgment. Repeated decisions have settled that to authorize a reversal it must certainly appear that there is error in the judgment and in what it consists. The judgment is affirmed. Judgment affirmed.

AM. DEC. VOL. LXVII-41

RECORD SHOULD CONTAIN EACH PAPER FILED, IN ITS PROPER PLACE AND DATE: Baltzell v. Nosler, 63 Am. Dec. 466. Where a part only of the record of the case is produced in the appellate court, a party cannot object that certain things do not appear by it to have been done: Lynch v. Baxter, 51 Id. 735. All assignments of error should point to the particular part of the proceedings where the error is alleged to have occurred: Eslava v. Lepretre, 56 Id. 206.

AMENDMENTS OF WRIT BY CHANGING NAME OF PERSON NAMED THEREIN: Crafts v. Sikes, 64 Am. Dec. 62, and note 63.

VARIANCE IN NAMES; DOCTRINE OF IDEM SONANS: Schooler v. Asherst, 13 Am. Dec. 232, note 233.

WHERE SHERIFF IS PARTY, PROCESS SHOULD ISSUE TO CORONER: Collais v. McLeod, 49 Am. Dec. 376; Bowen v. Jones, 55 Id. 426, note 427. Service of process by a constable is to be deemed prima facie evidence that the state of facts existed which rendered it proper for him to serve the process: Gay v. State, 20 Tex. 507, citing the principal case.

TAYLOR v. BOULWARE.

[17 TEXAS, 74.]

HOMESTEAD IS NOT LOST BY DEAth of Wife of OWNER, so long as he continues to make it his residence with his servants and family if he have any, or without them if he have none.

HOMESTEAD IS NOT ABANDONED BY OWNER'S ABSENCE for six or seven months without any intent to change his residence, leaving his family and servants upon the premises.

EXTENDING CORPORATE LIMITS OF TOWN OVER HOMESTEAD by act of the legislature, without any act of the corporation extending the plan of the town thereto, by providing for laying out streets, or the like, will not affect its character as a homestead, under the Texas constitution. LAND WITHIN TOWN IS NOT TOWN LOT UNTIL STREETS ARE EXTENDED So as to include it in the plan of the town.

APPEAL from a judgment for the plaintiff in an action of trespass to try title. The plaintiff claimed the land as a homestead. After beginning to occupy it as such his wife died. He had no children, but continued, after his wife's death, to reside upon the land with his servants, one of his nieces and her husband residing with him. During the years 1851 and 1852 the plaintiff was absent on a visit to Mexico and South Carolina for six or eight months, but without any intention of changing his residence, and his niece and her husband remained in charge of the homestead with his servants. In 1850, by an act of the legislature, the corporate limits of the town of Marshall were extended over the premises, but there was no evidence that the corporation had done anything by surveys, extension of streets, or the like, to include the premises within the town limits. The