
    WADE v. STATE.
    (No. 3362.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    1. Criminal Daw (§ 598) — Continuance— Diligence.
    Where accused was denied subpoena for a witness because the state had already subpoenaed him, whatever diligence the state used would be sufficient for accused, moving for continuance for the absence of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 595) — Continuance— Materiality of Evidence.
    Where, in a prosecution for assault to murder, the state relied on the theory that defendant was prevented from shooting the assaulted party by F. taking the gun away from him, a showing, on a motion for continuance, that F. would testify that the gun was not cocked and was not pointed towards such party was material, and ground for continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    3. Criminal Law (§ 596) — Continuance-Cumulative Evidence.
    The doctrine of cumulative evidence does not apply on a first application for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    4. Criminal Law (§ 917) — New Triai^-Re-fusal of Continuance.
    An unwarranted refusal of a continuance is ground for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2161, 2162; Dec. Dig. § 917.]
    5. Homicide (§ 158) — Threats—Admissibility.
    In a prosecution for assault to murder, a statement by accused that he was going to kill a red-headed, freckled-face s- of a b- — •, is inadmissible, where there was no evidence pointing the threat towards the assaulted party.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    Appeal from District Court, Cherokee County; Lee D. Guinn, Judge.
    Bob Wade was convicted of aggravated assault, and he appeals.
    Reversed and cause remanded.
    Norman, Shook & Gibson, of Rusk, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Under a charge of assault to murder, appellant was convicted of an aggravated assault.

When the case was called for trialj he moved for a continuance on account of the absence of the witness G. T. Tarrant, who was shown to be in Laredo, sick and unable to attend court. It is further shown that, when appellant asked for process, it was refused on the ground that the state had already summoned him. Of course, under this state of facts, appellant would rely upon the diligence of the state to have the witness present, and whatever diligence was used for the state would be ample for the appellant. The witness disobeyed the subpoena because of his inability to be present at court. He was temporarily at Laredo; had gone on business to Mexico, and en route home was taken sick; otherwise, he would have been in attendance upon court. He is shown to have been an eyewitness to the alleged assault, and assisted in taking the gun from appellant at the time. The state relied upon the theory that defendant undertook to shoot Ferguson, the alleged assaulted party, and was prevented by taking the gun from him. Among other things the state claimed that he pointed the gun at Ferguson, it was loaded, and he was thus prevented from shooting. Tarrant’s testimony would have been in direet conflict with the state’s case on the material facts. He would have testified, if present, that appellant did not point the gun at Ferguson, nor was it cocked at the time. This was very material testimony. This was the first application, and the doctrine of cumulative evidence does not apply. He was entitled to the continuance, and it was error to refuse it. These matters were all brought out in the motion for new trial. Plaving refused the continuance, a new trial should have been awarded.

There is another question to which we call attention: The state was permitted, over objection, to prove that appellant stated he was going to kill “a red-headed freckled-face son of a bitch.” Appellant objected to this, because it did not individuate or point out Ferguson as coming within the designated class, and as it did not .individuate him, but was a general threat, it should not have been introduced. We are of the opinion that under the authorities the proposition as presented is well taken. If the state could show that this threat was intended as against Ferguson, it would be admissible; but, until this has been done, such general threat is not admissible. A great number of cases could be cited, but it is unnecessary.

The judgment is reversed, and the cause remanded.  