Opinion
No. 23416.
Delivered October 23, 1946.
1. — Assault to Murder with Malice — Evidence.
Evidence sustained conviction of assault to murder with malice.
2. — Continuance — Absence of Witness.
Defendant's oral motion for continuance because of sick witness' absence was defective, in absence of statement of what facts defendant expected to prove by such witness, that her testimony was material, or that motion was not made for delay.
Appeal from District Court of Panola County. Hon. S. H. Sanders, Judge.
Appeal from conviction for assault to murder with malice; penalty, confinement in the penitentiary for four years.
Affirmed.
The opinion states the case.
Holt Holt, of Carthage, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
The offense is assault to murder with malice. The punishment assessed is confinement in the State penitentiary for a term of four years.
The record discloses that on the night of August 11, 1945,
some negroes and some white men were engaged in a crap game. Some trouble arose over the game and bad language was used by appellant toward some of the white men which they resented. Appellant hurriedly left the scene of the game with the remark that he would be back. He soon returned with a double-barreled shotgun and fired at E. W. Lampin who, when he saw appellant raise the gun to fire, fell to the ground, and the shot passed over him. At the time that appellant shot at Lampin, he was not over 15 or 20 feet from him.
Appellant did not testify or offer any affirmative defense. However, at the close of the evidence he moved for an instructed verdict of not guilty, which was denied.
It is our opinion that the evidence adduced by the State is sufficient to sustain the conviction.
Appellant brings forward three bills of exception. The first complains of the action of the trial court in overruling his oral motion for a continuance based on the absence of his wife, who was sick. The application is defective for the reason that it fails to state what fact or facts he expected to prove by the absent witness; that her testimony was material or that the motion was not made for delay as required by Art. 543, C. C. P. Therefore, no error was committed by the court in overruling the same.
Bill No. 2 complains of the action of the trial court in overruling his motion for an instruction to the jury to return a verdict of not guilty. This bill is without merit and is overruled.
Bill No. 3 complains of the court's action in overruling his objections to Paragraphs 13 and 14 of the court's main charge. We have examined said paragraphs of the charge in the light of appellant's objections thereto, and reached the conclusion that there is no merit in his contention.
No error appearing from the record, the judgment of the trial court is 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.