¶1The appellant asks for a reversal of tbe judgment of the court below, upon tbe ground that it erred in overruling his motion for a new trial.
¶2The motion was based on the evidence set out in bis bill of exceptions, which it was claimed, shows a case of surprise to tbe appellant on tbe trial, by reason of the failure of tbe witness Lynch to appear until after the jury bad retired to consider of their verdict. It appears that after the appellant had introduced two other witnesses, he stated in court that he had another witness, John P. Lynch, who he wished to examine for the purpose of contradicting a material statement which had been made by a witness who had testified in the case on behalf of the State. That thereupon the witness was called ■et the door of the court house, but did not answer, and that *521after waiting for some time for said, witness, who failed to appear, the jury ivas instructed to retire and consider of their verdict, and immediately after they had so retired the witness Lynch appeared in the court house.
¶3It does not appear, however, whether he had been summoned by the appellant or not; nor does it appear by affidavit or otherwise what his testimony would have been if introduced and examined.
¶4To reverse the judgment for the refusal to grant a new trial, upon the facts disclosed by the record, therefore, would certainly be extending the rule as to granting new trials’ further than would be warranted by any of the cases. The judgment, I think, should be affirmed with cost anddamiges
¶5Judgment appirmed.