Defendant-appellant was indicted and tried in the county of Pima for an assault with intent to murder. The first assignment of error was that the court refused to grant a continuance. The affidavits do not state that he expected at any time to procure the testimony of the witnesses. With such an uncertainty, a criminal case ought not to be continued. A continuance in a criminal action rests in the sound discretion of the court, and will not be reversed except in cases manifestly arbitrary and unjust. Brown v. State, 85 Tenn. 439, 2 S. W. 895.
The second assignment of error is the refusal of the trial judge to exclude the witnesses. This is solely a matter of discretion.
The third assignment is refusal of the court to allow defendant to testify to a conversation between prosecuting witness and himself three hours before the alleged assault. We do not think such conversation admissible. A previous fight would not have been allowed to be proven by the defense.
Exceptions were taken that the jury in their deliberations arrived at their verdict by some of them being persuaded that the punishment would be light. It is well understood that juries cannot thus impeach their own verdict.
Another exception is that the jury was not all of the time *62in custody of the officer sworn in court. Another officer was in charge of the jury part of the time, who, before taking charge, was sworn by the clerk. There is no provision of the criminal statutes requiring ar officer to be sworn; it is usually done. In this case, deputy sheriffs had charge of the jury-
Exception is taken because the court did not charge the jury that they could render a verdict for an assault with deadly weapon or any less offense than that charged. Had the court refused to so charge, there would have been error; but no such instruction was asked for by the defendant, and he cannot now take advantage of there being no instruction on that point.
The judgment is affirmed.