Conviction is for driving an automobile upon a public highway in Smith County while appellant was intoxicated, punishment assessed at a fine of $50.00 and thirty days in jail.

We have no statement of facts in the record. The only bill of exception complains because the trial court denied appellant a continuance. It is practically impossible to appraise the merits of a complaint based upon the refusal of a continuance where the facts are not before us. However, in this instance the State under the sworn statement of the County Attorney resisted the continuance on the ground that there was no such person as the absent witness for whom continuance was asked, but that he was a fictitious person. The court heard evidence upon the question, which evidence is brought forward. The trial court can not be charged with abusing his discretion in overruling appellant’s application.

The judgment is affirmed.