The appellant was convicted of a misdemeanor and applied for a new trial on the ground of surprise; his motion was denied, and he assigns for error the ruling refusing his motion.

Where a new trial is asked upon the ground of surprise, created by the testimony of a witness, there must be an affidavit of the party showing, among other things, that there was diligence used by him, and that he was in fact surprised-by the testimony of the witness. A stranger can not, as a general rule, make such an affidavit as is required by the party. Brownlee v. Kenneipp, 41 Ind. 216. But if it were otherwise, there are no affidavits from third persons upon these points, although there are upon other points.

There is no affidavit from the appellant before us, for the reason that none is incorporated in the bill of exceptions. There is an affidavit attached to his motion, but it is not carried into the bill, and, under repeated decisions of this court, forms no part of the record.

Judgment affirmed.