
    Burton v. Commonwealth.
    June 19, 1942.
    R. Herman Cannon for appellant.
    Hubert Meredith, Attorney General, and Wm. F. Neill, Assistant Attorney General, for appellee.
   Opinion of the Court by

Judge Tilford — Affirming.

Appellant was convicted of maliciously shooting and wounding one' F. 'Martin with intent to kill, and sentenced to three years’ confinement in the penitentiary. He has appealed to this Court, urging as grounds for reversal, (1) That the jury should have been peremptorily instructed to find him not guilty, and (2) that his attorney became ill during the trial and was unable to properly present or argue the case to the jury.

The evidence presented to us in narrative form shows that appellant, approached Martin, who was unarmed, and provoked an altercation by asking who had told him that appellant had said anything' about him. Martin, who was working with a jack, either tried to kick the handle out of it and was shot while doing so, or, as related by appellant, succeeded in removing the handle and drew it back as though he intended to strike appellant. Whether appellant shot in his necessary, or apparently necessary, self-defense was clearly a question for the jury.

The affidavit filed in' support of the motion for a new trial is not in the record. All that appears in connection with the second ground urged is the statement in the Bill of Exceptions:

“The attorney for the defendant because of his illness was not able to argue the case except to just say a few words from his seat, and the case was then vigorously argued by the Commonwealth.”

Both parties had announced ready for trial; no motion for a continuance was made at any stage of the proceedings; and there is nothing to indicate that appellant’s rights were in any manner prejudiced.

Judgment affirmed.  