
    PERALES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Criminal Law (§ 1151) — Appeal—Discretion of Trial Court — Continuance.
    Where defendant moved for a continuance on the ground that he was too unwell to undergo trial, and the state controverted the motion by affidavit of the jailer tending to show that defendant was not unwell, the denial of such motion was an exercise of the trial court’s discretion, which should not be disturbed in the absence of a showing of abuse.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. § 1151.]
    2. Homicide (§ 300) — Instructions — Self-Defense — Threats .
    Where accused alone testified that deceased had threatened to kill him, there was no error in a charge that deceased had made “a threat” against defendant “as testified to by defendant,” even if his testimony might be construed as showing another threat.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Instructions — Defendant’s Belief as to Threat.
    In such case, where there was no question of any other threats, a charge as to defendant’s honest belief as to the making of such a threat by deceased was not called for.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Criminal Law (§ 1144) — Appeal — Discretion of Court — Motion for New Trial.
    Where the trial court, in overruling defendant’s motion for a new trial on the ground of local prejudice, stated that it heard the motion and the evidence submitted thereon and was of the opinion that the same should be overruled, the appellate court, in the absence of the evidence from the record, must presume that the evidence heard did not sustain the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dee. Dig. § 1144.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Juan Perales was convicted of murder in the first degree, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of murder in the first degree, and his punishment fixed at life imprisonment. It is unnecessary to recite the evidence. The state’s case, by several disinterested witnesses, shows a willful, premeditated killing.

Appellant made a motion for a continuance on the ground that he was too unwell to undergo trial. This was controverted by the state, and the affidavit of the jailer, where appellant was confined and had been for about a month, tends to show that appellant' was not unwell as claimed. The trial court must necessarily have large discretion in such matters, and this court would not reverse unless the record showed a clear abuse bf this discretion. There is nothing in this record which tends to show that the court in any way abused this discretion in bis action in forcing appellant to trial at tbe time. Appellant bas no other bill of exceptions. His other complaints are in bis motion for new trial.

Nothing in tbe record called for a charge on temporary insanity, produced by tbe voluntary recent use of ardent spirits, as provided for in article 41, P. C. Lucas v. State, 155 S. W. 529; Clore v. State, 26 Tex. App. 629, 10 S. W. 242; Ex parte Evers, 29 Tex. App. 563, 16 S. W. 343.

Tbe court submitted a charge on self-defense, based on appellant’s testimony. There is no complaint to this charge. He also, in another paragraph, separately submitted self-defense on tbe ground of threats. Appellant alone testified that the deceased had threatened to kill him. No other witness testified to any such threat. The court, therefore, did not err in telling the jury that if they believed from the evidence “deceased had made a threat against the life of defendant, as testified to by defendant,” for he alone so testified; and the court did not err in saying “a threat,” as appellant himself testified to only one such threat. Even, if his testimony bore the construction that he made another, such charge of the court, taken as a whole, would show no erfor on this point.

Neither did the court in that charge err in charging, as above quoted, and in not charging in that connection that if defendant honestly believed he made such a threat. He alone so testified, and no witness contradicted him. There was no question of other threats communicated or uncommunicated. Hence such a charge of honest belief was not called for.

The only other question is: Appellant claimed in his motion for new trial that, while the sheriff was summoning the second special venire of 40 men, a local newspaper in El Paso published an inflammatory article about the killing of certain persons in that country by Mexicans, and that he did not ask any of these veniremen on their voir dire anything about this for fear that, by thus questioning these special veniremen, he might thereby give information to the eight jurors who had already been selected and prejudice them; and that said newspaper article had been read by many persons on the streets in El Paso, and the most intense anti-Mexican feeling was aroused and expressed by that other murder.

The judgment of the court in overruling appellant’s motion for a new trial states, after showing the appellant and his attorney were in court, and the state, by her district attorney, “And the court, having heard the said motion and the evidence thereon submitted, is of the opinion that the same should be overruled,” and thereupon overruled said motion. What evidence was introduced is in no way shown by the record. Under the circumstances, we must presume that the evi-i dence heard on the motion for new trial did not sustain appellant’s allegations in his motion for new trial.

The judgment is affirmed. .  