Opinion
No. 19068.
Delivered June 2, 1937.
1. — Continuance — Statement of Facts.
In absence of statement of facts, appellate court held unable to appraise bill of exceptions complaining of the refusal of second application for continuance.
2. — Assault With Intent to Murder — Charge (Special).
In prosecution for assault to murder, refusal to give special charge asked to be given in lieu of certain paragraph of court's charge, held not error, where there was no material difference between the principal of law embodied in the special charge and that contained in paragraph of the charge as given.
3. — Same.
In prosecution for assault to murder, special charge which sought to have jury told that the use of any unlawful violence upon the person of another with intent to injure him in an assault, was properly refused.
Appeal from the District Court of Potter County. Tried below before the Hon. E. C. Nelson, Jr., Judge.
Appeal from conviction for assault to murder; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
W. J. Flesher, of Amarillo, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for assault to murder; punishment, two years in the penitentiary.
The record is here without any statement of facts. Appellant complains by bill of exceptions No. 1 of the refusal of a second application for a continuance. In the absence of a statement of facts this court is unable to appraise said bill. For aught we know the absent witnesses may have appeared and given testimony upon the trial.
Complaint is made in another bill of exceptions of paragraph three of the charge of the trial court. We see nothing wrong with said paragraph, which presents an ordinary proposition defining an assault and battery. As a part of said bill of exceptions complaint is also made of paragraph nine of the charge. We have examined said paragraph, and it seems to us to announce a correct proposition of law.
Appellant's bill of exceptions No. 3 complains of the refusal of a special charge asked to be given in lieu of that contained in paragraph nine of the court's charge, which is above referred to. We do not see any material difference between the principle of law embodied in the special charge and that contained in paragraph nine of the charge as given. We see no error in refusing special charge No. 2, which sought to have the jury told that the use of any unlawful violence upon the person of another with intent to injure him, is an assault.
Finding no error in the record, the judgment is affirmed.
Affirmed.