
    10267.
    Cason v. The State.
   Broyles, P. J.

1. The defendant’s motion for a continuance of the

ease, based upon the absence of two witnesses, did not show that he expected to be able to have the testimony of the witnesses at the next term of court. Moreover,’as shown by the special ground of the motion for a new trial, complaining of the overruling of the motion- for a continuance, both witnesses resided in the state of Florida. Under these circumstances, the court did not err in overruling the motion. Penal Code (1910), § 987; Boyd v. State, 17 Ga. App. 162 (86 S. E. 411); Woolfolk v. State, 85 Ga. 69 (4) (11 S. E. 814); Owins v. State, 110 Ga. 292 (34 S. E. 1015) ; Minder v. State, 113 Ga. 772 (39 S. E. 284).

2. The charge of the court that “Provocation by words, threats, menaces, or contemptuous gestures shall in nó case be sufficient to free the person, killing from the guilt and crime of murder” (Penal Code, § 65) was not erroneous for any reason assigned. Deal v. State, 145 Ga. 33 (88 S. E. 573) ; Buxton v. State, 19 Ga. App. 331 (91 S. E. 490).

3. The 3d special ground of the motion for a new trial (erroneously numbered “4”) is expressly abandoned in the brief of counsel for the plaintiff in error.

4. Failure to instruct the jury as to the penalty for the offense of assault with intent to murder was not error, in the absence of a timely written request.

5. The fact that two of the jurors were members of the grand jury that found the bill against the- accused is not cause for a new trial. The accused and his counsel, by the exercise of due diligence, could have discovered this fact before the jury was empanelled. Britt v. State, 112 Ga. 583 (37 S. E. 886).

Decided April 12, 1919.

Indictment for assault with intent to murder; from Charlton superior court—Judge Summerall. September 25, 1918.

James R. Thomas, A. S. McQueen, for plaintiff in error.

A. B. Spence, solicitor-general, M. D. Dickerson, Wilson & Bennett, contra.

6. The alleged newly discovered evidence (the basis of the 6th, 7th and 8th special grounds of the motion for a new trial) being cumulative and impeaching in its character, it does not appear that the trial judge abused his broad discretion in overruling these grounds of the motion.

7. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Stephens. JJ. concur.  