When this case was first transferred from the district to the county court, the clerk’s certificate accompanying the transfer made it appear as though the indictment had been presented in the district court two days subsequent to the order of said court transferring the said indictment to the county court. Defendant presented a plea to the jurisdiction of the county court, based upon this ground, which was sustained and the case dismissed. On the following day the county attorney, on motion, obtained a *596certiorari to the district clerk to send down a complete transcript of the record, and in obedience to the same the said clerk did send down a more complete record, which made the transfer, regular in all respects, and which showed that the order for and transfer of the case were in fact made at a date subsequent to the presentment of the indictment in the district court.
When the case was again reached for trial, defendant interposed a second plea to the jurisdiction upon the ground that, the cause having been previously dismissed, the county court could not acquire jurisdiction anew in the manner attempted. This plea was overruled, exception was saved, and the ruling is here claimed for error. A question in every respect identical was made in Hasley v. The State, 14 Texas Ct. App., 217, and it was there said: “ While this proceeding as presented by the record was irregular, still we do not think it was such error as demands a reversal of the judgment. This court has held that where the certificate is defective it may be amended or a new one obtained (McDonald y. The State, 7 Texas Ct. App., 113), and it was proper for the county attorney in this cause to have filed a correct certificate; but this should have been done in reply to the motion to dismiss. But we do not think that the dismissal of the cause barred its further prosecution. When a correct certificate was filed it renewed the case and gave jurisdiction of the same to the court in the same manner and to the same extent as if there had been no previous action of the court therein.”
Court convened and the term commenced on the 4th day of ¡November. On the 7th defendant filed his application for a continuance for absent witnesses who were residents of the county and under service of process by subpoena. The allegation was that they had never disobeyed a subpoena until the present term. By use of diligence, when it was found the witnesses were absent on the first day of court, their presence might have been secured in time for the trial. The application does not sufficiently negative the fact of want of diligence, and we cannot say that the court erred in overruling it.
Defendant’s third, fourth, fifth and sixth bills of exception present in substance the same question. Defendant proposed to prove by each of the several witnesses the customs and habits of defendant and his associates on occasions, when controversies or disputes would arise amongst them, of cursing, abusing and denouncing each other in insulting, violent and obscene language, frequently drawing their knives and pistols and flourishing them in fun and with threatening gestures, without any intention to use them to the in*597jury of any one. This testimony, on objection by the prosecution, was excluded by the court as inadmissible and incompetent. In this ruling-the court was correct. Whilst it might, perhaps, have been entirely legitimate to show, if possible, that defendant, in the circumstances inquired about, was simply indulging in characteristic though in only harmless fun, notwithstanding his language was violent and insulting and his actions threatening and dangerous, and whilst he was entitled, if he so desired, to put in issue his general character as a man of peace, notwithstanding he was “full of strange oaths,” overbearing and desperate in demeanor, and apparently utterly reckless in his fondness for the handling and display of dangerous and deadly wreapons, still the evidence, we apprehend, would not be permitted to extend beyond his individual acts and conduct at the particular time, or his individual general reputation as a man of peace and good will. Evidence of custom, usage or habit amongst the select class of his associates was not admissible or competent.
Evidence of usage or custom in those circumstances where they have otherwise become firmly fixed and established is never “permitted to have effect when they contravene any established general rule of law; and, therefore, evidence in proof of any such usage is ordinarily inadmissible.” (2 Greenl. Evid. (13th ed.), § 219.) We are aware of no principle of law which would tolerate a usage, custom or prescription that would confer upon a citizen the right to act the rowdy to the disturbance of the peace, and carry a sixshooter in violation of the general statutes.
Two special instructions were requested for defendant, the first of which was “ that in every assault there must be an intent to injure, coupled with an act which must be the beginning of the attempt to injure at once, and not a mere preparation for some contemplated injury that may afterwards be inflicted; therefore, if you believe from the evidence that the defendant Simuel Hawkins drew the pistol only in preparation for the infliction of some contemplated injury, and not with the intention to injure Green Bonner at once, you will acquit him.” This first instruction was given. The second, which the court refused, was “ that in order to convict the defendant Simuel Hawkins of the offense charged, you must first believe from the evidence that if the defendant did draw and present his pistol at Green Bonner, as alleged, the same was done with the intent to injure, and was not an act of drunken bravado.” Having given the first there was no necessity for the second instruction, as the latter was embraced substantially in the former. *598The evidence directly pertinent to the instructions was that when Bonner claimed the money, Hawkins, the defendant, said “ that settles it. If that don’t settle it, you damn son of a bitch, this will; ” then stepped back about six feet, drew His pistol and presented it at Bonner, when Mr. Heinze caught him by the arm and said “ ‘ Simuel, put up your pistol,’ and Simuel did so.” The charges given fully submitted the question of intent to the jury.
We have found no error for which the judgment in this case should be reversed, and it is therefore affirmed.
Affirmed.
[Opinion delivered February 25, 1885.]