This is an appeal from a conviction of an assault with intent to murder, the punishment imposed being confinement in the State penitentiary for two years. After the trial and conviction, the defendant moved for a new trial on two grounds; 1, newly-discovered testimony, an 1 2, surprise in being deceived by the testimony of one of his own witnesses, who, it is alleged, had induced him to believe he would have sworn differently from what he testified to on the trial. These being the grounds of the motion, the court below on hearing the motion heard the evidence of the persons whose affidavits were offered in support of the motion *185for a new trial, as well as that of other witnesses, and overruled the motion.

There is a new provision of the Code of Procedure, in regard to procedure on applications for new trials, which is as follows: “The State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial, and in such case the judge shall hear evidence, by affidavit or otherwise, and determine the issue.” Code Crim. Proc. art. 781. Under the provisions of this article, the court was authorized to hear evidence in determining whether to grant a new trial or not. Reynolds v. State, 7 Texas Ct. App. 516; Rucker v. State, id. 549.

As to that feature of the motion for a new trial based on the ground of newly-discovered evidence, we are of opinion the application was insufficient in two particulars,— diligence and materiality. White v. State, decided at the present term of the court, and the rules of law governing new trials on the ground of newly-discovered evidence there collated (ante, p. 167); Thomason v. State, 2 Texas Ct. App. 550, and cases cited. The fact that the defendant has been confined in jail will not excuse a want of proper diligence in preparing for a trial, unless it be shown that he had no one not so confined who could have rendered the necessary assistance. Thomason v. State, cited above.

As to that portion of the motion for a new trial which is based on the ground of surprise at the testimony of one of the witnesses, it is sufficient to say that, whilst the law has made provision for such a contingency, the remedy afforded is not by granting a new trial, this not being embraced within the grounds for which a new trial will be granted. Tin Code has prescribed the grounds upon which new trials may be granted, and, excépt on those enumerated, it is declared new trials shall not be granted. Code Crim. Proc. art. 777.

*186. When the surprise occurred, the defendant should have applied for a continuance or a postponement of the trial. The Code of Procedure declares that “ a continuance may be granted on the application of the State or defendant ■ after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had; or the trial may be postponed to a subsequent day of the term.” We do not undertake to say that the surprise here complained of would have' been sufficient to have warranted a continuance of the case or a postponement of the trial; but, if this were so, then it became the duty of the defendant to apply to the court for either a continuance or postponement, and not to pass it by and depend upon a new trial to enable him to counteract the effect of the surprise.' He should have acted at the time and in the manner prescribed by law, and not having done so, he cannot now be heard to complain. Code Orim. Proc. art. 568; Higginbotham v. State, 3 Texas Ct. App. 447; Walker v. State, 7 Texas Ct. App. 245. There was no error in overruling the defendant’s motion for a new trial. This being the error specially complained of, and finding no other error in the proceedings, the judgment must be affirmed.

Affirmed.