The offense is an assault with intent to murder, and the punishment is four years in the penitentiary.
The appellant complains at the court's action in overruling his second application for a continuance. This application was for the wife of the appellant, whom he alleged to be a material witness in his behalf, and whom he claims was sick and unable to attend court, although present in the town of Eastland where court was being held. We think no error is manifested by the record in overruling this application.
The testimony as to her condition was conflicting, but if full faith and credit be given that offered by appellant and that offered by the state be disregarded we think it clear that the testimony is such as to indicate that the condition of the appellant's wife is chronic and there is no showing made excusing appellant for not having taken the deposition of his wife, and neither is there a sufficient showing in the record to indicate any probability of her condition being better at another term of the court. We may observe in passing that the affidavit of the wife as to what her testimony would have been is not found in the record and not attached to the motion for new trial.
By bills of exceptions Nos. 2 and 3, appellant complains at the argument of the prosecuting attorney in the case. The court qualifies these bills by saying that they were solicited and invited by the argument of appellant's counsel, and in this condition of the record no error is shown.
We think the court was not in error in permitting the state to prove that one of the parties who came with appellant to the house where the difficulty occurred was under the influence of liquor. It was certainly not of such importance as to justify a reversal of the case.
Neither do we think the court was in error in permitting the witness Turnbow to detail a conversation he had with the appellant *Page 373 at the home of Turnbow, where the shooting occurred. This conversation took place immediately before the shooting and was admissible.
Appellant's complaint at the court's action in sustaining the state's objection to a question asked the witness Turnbow by him is without merit. The question was leading and suggestive and if appellant desired to go into the matter it was his duty to conform to the rules of evidence in asking the question.
We have examined the other complaints contained in the record and have reached the conclusion that they are without merit.
Believing that the facts are entirely sufficient to support the verdict and finding no errors of procedure in the record, the judgment is in all things affirmed.
Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.