I. It was not error to refuse to grant defendant’s application for a continuance. P. S. Humble, one of the witnesses for whose testimony the continuance was sought, testified on the trial in behalf of the defendant. William McEadden, another one of said witnesses, was present before the testimony on the trial was concluded, and the defendant declined to place him upon the witness stand. Irene May, another of said witnesses, was on the way to attend the trial, having been attached as a witness in behalf of the defendant, and the court offered to postpone the trial to await her arrival, but the defendant waived such postponement. As to the testimony of the other witnesses named in said application, it could not be regarded as material, in view of the evidence adduced on the trial; and, furthermore, it appears that said other witnesses also made their appearance in court, and that the defendant, although having the opportunity to do so, did not place them upon the witness stand. Other grounds set forth in the application are not legal ones, and were addressed to the discretion of the court, and, in our judgment, the application was without merit, either legal or equitable, and the defendant has suffered no injury by its refusal.
II. Defendant’s second bill of exceptions discloses no error injurious to his rights. It complains that a certain question, which was propounded by defendant’s counsel to the witness Enloe, the court, upon objection made by the State, would not allow to be answered. It is not shown by the bill what answer would have been made to said question by said witness, or what answer defendant expected thereto from said witness. We can not know or presume that the answer to said question would *126have been at all material or in any way beneficial to the defendant. The bill furthermore states no object or purpose to be attained by the question and answer thereto, (Hennessey v. The State, 23 Texas Ct. App., 340; Walker v. The State, 19 Texas Ct. App., 176; Counts v. The State, Id., 450; Davis v. The State, 14 Texas Ct. App., 645; Guajardo v. The State, 24 Texas Ct. App., 603.)
Opinion delivered March 3, 1888.III. There is no merit in any of the exceptions made to the charge of the court. The charge is plain, concise, applicable to the evidence, and in all respects correct and fair to the defendant. The two special instructions requested by the defendant were not demanded or even warranted by the evidence, and were properly refused.
IV. We can perceive no error in the action of the court overruling defendant’s motion for a new trial. Without discussing in detail the various grounds of said motion, we will say that each of them has had our careful consideration. Some of the grounds are unsustained and contradicted by the record, and none of them would, in our opinion, justify this court in disturbing the conviction. That the evidence warrants and confirms the conviction, and justifies the extreme penalty assessed, we have no doubt. The evidence proves that the homicide was deliberately and sedately committed by the defendant, with a formed design to take the life of the deceased. There is ample evidence proving express malice on his part. There is no evidence showing justification, excuse or mitigation. It is, upon the evidence, a clear case of murder in the first degree, unaccompanied by the slightest extenuating fact.
The judgment is affirmed.
Affirmed.