
    RICEN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 17, 1911.
    Rehearing Denied June 23, 1911.)
    1. Criminal Law (§ 603) — Continuance-Absent Witnesses — Application — Aver-ments.
    On defendant’s second trial for the same offense, he requested a continuance to take the deposition of witnesses who were without the jurisdiction. These witnesses had testified in the former trial, and their testimony was preserved in the notes of the court stenographer, and was admissible on the second trial. The application did not allege that defendant expected to prove additional facts by the witnesses. Held, that the continuance was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1356; Dec. Dig. § 603.]
    2. Arrest (§ 63) — On Criminal Charges— Authority to Arrest Without Warrant —Statute.
    Pen. Code 1895, art. 342, provides that any person violating article 338 may be arrested without a warrant, and an officer who fails or refuses to arrest such person upon his own knowledge or information from some credible person shall be punished by fine. Article 338 prohibits the carrying of pistols and other weapons. Held, that defendant, who was shooting off a pistol on. a public road, was properly arrested without a warrant; the arresting officer having heard the shots and being informed by credible witnesses that defendant was the guilty party.
    [Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 145-156; Dec. Dig. § 63.]
    3. Criminal Law (§ 1090) — Appeals—Bills op Exception — Necessity.
    Assignments of error not supported by bills of exception will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § 1090.]
    4. Homicide (§ 174) — Assault with Intent to I-Cill — Evidence—Admissibility.
    In a prosecution for assault with intent to kill, it appeared that defendant, when a peace officer attempted to arrest him as he was riding in a wagon, shot at the officer, and when arrested there was a pistol in the wagon, and cartridges which fitted the pistol were found on defendant’s person, and that the cartridges had soft-nosed bullets which had been split and something put into them. Held, that evidence of these facts was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    5. Criminal Law (§ 404) — Demonstrative Evidence.
    It was proper to exhibit such cartridges to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893; Dec. Dig. § 404. ]
    6. Homicide (§ 300) — Instructions — Self-Defense.
    . In a prosecution for assault with intent to kill, where the evidence raised no issue of self-defense, a charge on that subject was properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    Appeal from District Court, Caldwell County ; L. W. Moore, Judge.
    Cruz Ricen was convicted of an. assault to murder, and appeals.
    Affirmed.
    E. B. Coopwood, 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
    
   HARPER, J.

This is the second appeal in this case; the former being reported in 58 Tex. Cr. R. 457, 126 S. W. 577. Upon again being placed upon trial, appellant was convicted of an assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

The evidence in the case is so fully set forth in the opinion on the former appeal, we do not deem it necessary to recite it here. The court, in compliance with said opinion, submitted the issue of aggravated assault in a proper charge.

The first contention of appellant is that the court erred in overruling his application for a continuance. The court, in approving the bill, states this is the second application for a continuance on account of the absence of the same witnesses; that the two witnesses named had testified at the former trial of this case, and their testimony taken down by a stenographer, transcribed, and was on file and accessible to defendant. Defendant alleged that both of said witnesses had gone to Mexico. The address of one he did not know. He asked for a continuance that he might take their depositions. As they were beyond the jurisdiction of the court, upon a showing to that effect, under the decisions of this court, the testimony as taken down by the court stenographer was admissible on behalf of defendant. As defendant did not allege any additional fact he expected to prove by them there was no error in overruling the application. Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138, and cases cited in these opinions. In addition, the court in his qualification states no diligence was shown.

Appellant, in bills of exception Nos. 1, 2, 3, 6, and 8, raises the question of whether an officer, under the facts of this case, is authorized to make an arrest without warrant, and, if not, then in that event the defendant, if he fired the shot at J. L. Lane, as alleged, was justified, inasmuch as Lane was seeking to arrest him. The evidence indicates that J. L. Lane, constable of precinct No. 1, attended a celebration at Bodeman’s Hall,1 when he heard seven or eight pistol shots north on the road. He immediately started in that direction, and was joined by Lloyd Blundell and Bine Ellison. He overtook one hack, and the occupants told him that the shooting was done by those in front of them. He says when he got in 15 or 20 steps of them he called on those in the express wagon to “halt”; the reply being a pistol shot. Under this state of facts, was an officer authorized to make an arrest without warrant? We think so. Article 342 of the Penal Code provides; “Any person violating any of the provisions of articles 338 and 340 may be arrested without warrant by any peace officer and carried before the nearest justice of the peace for trial; and any peace officer who shall fail or refuse to arrest such person on his own knowledge, or upon information from some credible person, shall be punished by fine not exceeding. five hundred dollars.” When the officer heard some one down the road firing a pistol seven or eight times, he knew that some person was violating article 338 of the Penal Code, and, when those in the hack told him it was those persons in front of him, it became his duty to arrest the offending person. In the case of Jacobs v. State, 28 Tex. App. 80, 12 S. W. 408, it is held: “Article 342 of the Penal Code, which is a special provision and not controlled by other statutes relating to arrests, expressly provides that a person violating the law by unlawfully carrying a pistol may be arrested by a peace officer without warrant, upon his knowledge or upon information of some credible person. This statute must be construed to authorize a peace officer to arrest the offender without warrant upon information of a credible person, although the offender may be in a distant part of the county at the time of the information, and although the arrest may not be immediately made or attempted. A charge of the court to this effect was not erroneous.” See, also, Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; Miller v. State, 32 Tex. Cr. R. 350, 20 S. W. 1103. Many of the assignments of appellant are based on the proposition that the arrest of appellant by Lane, without warrant, was illegal. Under our holding that it was the duty of Lane when he heard the pistol shots in the road, and upon being informed that the man who fired the shots was in the wagon in front, to arrest the person thus offending, these assignments present no error. The pistol was identified as belonging to defendant.

There are several grounds stated in the motion, such as “that the court erred in permitting the state to cross-examine defendant’s wife on material matters not brought out by defendant,” that are not supported by bills of exception, nor is it shown what the questions were, nor what was elicited. In this state of the record, we cannot consider such assignments of error.

There was no error in permitting the witness Lane to testify that when he arrested defendant a pistol was found in the wagon, and 20 or 25 cartridges fitting this pistol were found on defendant’s person, nor that the cartridges were “soft-nosed bullets, and that their nose had been split open and something put in them and closed again.” Nor was there error in permitting the jury to see the cartridges. This might be material in determining whether defendant, if guilty, was guilty of an assault to murder, or aggravated assault. The pistol, as testified to, showed to have been recently fired and had black powder all over the muzzle. If the shooting took place, as testified to by Lane, Ellison, and Blundell, it was without justification, and no other witness testifies to any fact that took place at the time of the shooting. Whatever may have been the evidence when the case was tried before, we pass on this case under the evidence adduced on this trial, and there is no evidence suggesting that defendant acted in self-defense. There is no denial that he fired the shots testified to by Lane and the other witnesses, and no testimony that the shooting was done under other or different circumstances.

The court did not err in failing to charge on self-defense nor in refusing the special charges requested presenting the issue of self-defense, as the evidence raised no such issue. Peek v. State, 5 Tex. App. 611; Foreman v. State, 33 Tex. Cr. R. 273, 26 S. W. 212; Hastings v. State, 32 Tex. Cr. R. 372, 23 S. W. 797.

There was no issue raised under the evidence on this trial other than; Was defendant guilty of assault to murder or aggravated ássault? The court gave the special charge requested by defendant on this feature of the case. The witnesses positively testify that defendant fired at Lane, when all he had done was to call on those in the wagon to “halt.” In the record there is no denial, and the circumstances seem strongly to show, that he was the man who fired the seven or eight shots down the road, and, if we are correct in the holding that Lane was authorized to make an arrest, no error is presented.

Affirmed.  