The opinion of the court was delivered by
White, J.The defendant having been informed against for shooting with a dangerous weapon with intent to commit murder, convicted, and sentenced to ten years hard labor in the Penitentiary, appeals. Before going to trial he asked a continuance on the ground of the absence of witnesses material to his defense, which was refused. The matter was within the sound discretion of the lower court, and there is nothing in the motion itself or in the record showing that the limits of sound discretion were transcended. The information charged that the accused “ with a certain dangerous weapon, to wit, a pistol, did shoot one W. N. Rogers with the intent of so doing, feloniously, wilfully, and of his malice aforethought, to commit murder, contrary,” etc. After the commencement of the trial, the jury having been impanneled, two *409■witnesses for the State having been heard, the testimony developing that a gun and not a pistol was the weapon with which the shooting was done, the State asked to be allowed to amend the information by substituting the word gun for pistol. The court allowed the amendment, and the trial proceeded. The court did not err. R. S. 1047. While the jury were deliberating, the court having taken a recess, they informed the deputy sheriff that they desired further instructions, to which he replied that the prosecuting attorney being absent, no further, instructions could be given until his return. This was made the. basis of an application for a new trial, which was refused, the court giving as reasons therefor that both the judge and district attorney were absent when the request was made; that had he been present he would have instructed the jury to await the return of the district attorney; that the jury did not repeat their request, which they had full opportunity to do. We can not say under this state of facts that the new trial was improperly refused.
Judgment affirmed.