One who is tried more than six months after the return of the indictment against him, could hardly be held to have supplied a necessary averment in an application for continuance, to-wit: that this was the first application, by stating therein that he "was placed in jail on May 12th, 1929, and his case called for trial May 14, 1929." For aught this court may know from such averment that accused may have been surrendered after arrest by his bondsmen, or may have been re-arrested and put in jail following the forfeiture of bail, etc. etc. It is not therein stated that appellant was first arrested following indictment on May 12th, nor is it stated that he was first then placed in jail. Nor does such application show, in stating the materiality of the absent testimony, as would seem required in case of a subsequent application for continuance, that there were no other occupants in appellant's car save the absent witness Nixon, nor that Nixon and the other absent witness Howard were the only persons present who saw the shooting and could give the testimony stated as that expected from said absent witnesses.
Bill of exception No. 4 sets out the argument of the prosecuting attorney in closing the case which was objected to. It is now urged that same was not supported by testimony and was inflammatory and prejudicial. Nothing in the bill shows these facts to be true.
The alleged injured party was an officer. He had engaged in a raid upon a gambling house in an oil town on the night of November 5th. He was shot by appellant on November 6th, and testified that appellant and another man came up in cars, got out, and that appellant drew his pistol and began shooting at him. While proof of motive is not indispensable, it is always allowable. We believe the trial court entirely within the limits of his discretion in permitting the State to show, for the purpose of shedding light upon appellant's motive, that the latter was employed in such gambling house, and had been told of the raid though he was shown not to have been present at the time of said raid.
It seems settled in this State that even though jurors do agree in their retirement to each write down the penalty which he deems adequate, and then divide the aggregate by twelve, or the number of *Page 651 jurors sitting in a particular case, this will not be held violative of that part of Art. 753, C. C. P. commanding new trials when the verdict is by lot, — if the facts show that the jury did not accept or agree upon the quotient thus arrived at as their verdict, but thereafter changed same and agreed upon a different penalty from that corresponding with such quotient. Pruitt v. State, 30 Texas Crim. App. 159; McAnally v. State, 57 S.W. Rep. 833; Rosamond v. State, 97 Tex. Crim. 642; Barnard v. State, 87 Tex.Crim. Rep.; McCord v. State, 105 Tex.Crim. Rep..
Being unable to agree with any of the contentions made by appellant, the motion for rehearing is overruled.
Overruled.