
    Henry Baw v. The State.
    
      No. 603.
    
    
      Decided December 6.
    
    1. Change of Venue — Controverting Affidavits. — On a motion for change of venue, where the State had filed controverting affidavits attacking the credibility and means of knowledge of the compurgators, Held, that the filing of additional affidavits by the State denying the truth of the facts set up in the motion and deposed to by the compurgators, while not required by the law (Code Crim. Proc., art. 583), could not impair the controverting affidavits nor injure defendant.
    2. Same. — The district attorney is not required to make or sign the controverting affidavits to a motion for change of venue, though he may do so when cognizant of the facts.
    3. Same — Prejudice and Combination — Practice on Appeal. — This court, on appeal, has invariably refused to disturb the refusal of the trial court to change the venue in a criminal case where the great weight of testimony on the motion negatives the existence of prejudice or fails to show the existence of the combination of influential persons alleged.
    4. Continuance — “Excited Condition” of the Public Mind. — An application for continuance based upon “the excited condition” of the public mind is too vague, and is no ground for continuance.
    5. Same. — An application for continuance is properly overruled where it appears that the witnesses named in the application were present at the trial.
    Appeal from tbe District Court of Jefferson. Tried below before Hon. StepheN P. West.
    Tbis appeal is from a conviction for assault witb intent to murder, tbe punishment assessed being five years in tbe penitentiary.
    Appellant and Green, tbe alleged injured party, occupied adjoining business bouses, and tbey used water from tbe same cistern. Tbe faucet of tbis cistern got out of order and was leaking. Green sent bis porter to fix it, and Baw came out and began to interfere witb tbe work. Hearing tbis, Green went out, sent for a new faucet, and went to work to put it in. Defendant objected, and finally Green told bim if be did not go away be would slap tbe p — ss out of bim. At tbis defendant, wbo was standing upon tbe steps of the stairway leading to bis apartments, drew a 38-caliber pistol and commenced firing upon Green. Green retreated and finally fell over behind some beer kegs into a coal box, in order to get out of tbe way. Defendant advanced and continued to shoot until bis loads were exhausted. About this time be was arrested by an officer. Green was wounded five times— twice in each arm and once in one of bis legs.
    Ho further statement is necessary.
    Ho briefs witb tbe record.
   DAVIDSOH, .Judge.

— Controverting tbe motion to change tbe venue, tbe State filed affidavits of Green, Tevis, and Denman, attacking tbe credibility and means of knowledge of Boclil and Nussbaum, appellant’s compurgators. Additional affidavits were filed by tbe State denying tbe truth of tbe facts set up in tbe motion to change venue and in tbe supporting affidavits, which were excepted to by appellant. Tbe exceptions were overruled. While such affidavits may not have been required by law, they did not impair tbe controverting affidavits of Green, Tevis, and Denman, and we can see no possible injury that could have accrued on account of this having been filed. Nor was it necessary that tbe district attorney, or some one representing the State, should have signed tbe controverting affidavits, though be may have done so with propriety bad be been cognizant of tbe facts stated. This may be done by any credible person. Dunn v. The State, 7 Texas Crim. App., 600; Willson’s Crim. Proc., secs. 2209, 2210.

Tbe refusal to change tbe venue was not error. Tbe great weight of the testimony adduced upon the trial of tbe motion negatives tbe existence of the prejudice alleged, and tbe evidence does not show tbe existence of tbe combination of influential persons set up. Under such state of case this court has invariably refused to disturb tbe ruling of trial courts refusing applications to change venue. Willson’s Crim. Proc., sec. 2212. Application for continuance was based upon alleged “excited condition” of tbe public mind, as well as for the testimony of certain named witnesses. “'Excited condition” is too vague to be considered, and, if fully stated as to details and facts, does not constitute ground for continuance. It might be considered in connection with motion for change of venue. Miller v. The State, 31 Texas Crim. Rep., 609.

If it be conceded that it might operate as a cause for continuance, tbe record does not show its probable truth when viewed from tbe standpoint of tbe motion for a new trial.

Tbe witnesses mentioned in tbe application were all present at tbe trial, one of whom testified in tbe case, and tbe remainder were not called on to testify. Tbe continuance was properly refused.

Tbe charge was correct. It submitted every issue suggested by tbe evidence, and favorably to tbe defendant. Tbe testimony fully supports tbe conviction.

Affirmed.

Judges all present and concurring.  