after stating the facts as above reported.

1. surprise as ground for new trial.

Appellant is not entitled to a new trial on the ground . of surprise. He made no ‘‘application for a postponement of the trial in order that he ’ ’ might ‘ ‘ repair the damage done him by the unexpected testimony.” Nickens v. State, 55 Ark. 567; see also Norwich & Worcester R. Co. v. Cahill, 18 Conn. 484; Holley's Admx. v. Christopher, 3 T. B. Mon. 14; Phenix v. Baldwin, 14 Wend. 62; Estate of Carterey, 56 Cal. 473; Cook v. De La Guerra, 24 Cal. 240; Brooks v. Douglass, 32 Cal. 211; 3 Graham & Waterman on New Trials, p. 968; Hayne’s New Trial and Appeal, sec. 85.

. Conceding that the instructions which the appellant asked for could have been lawfully g'iven, he was not prejudiced by the refusal of the court to give the same, as they were sufficiently covered by those g'iven.

2. ioRmCofce exceptions,

^ird ground is not properly presented for our consideration. It should appear, if true, in the bill of exceptions. Vaughan v. State, ante, p. 1.

Judgment affirmed.