
    BARREGO v. STATE.
    (Court of Criminal Appeals of Texas.
    March 22, 1911.)
    1. Criminal Law (§ 598) — Motion for Con-tinúan ce — Diligence .
    A motion for a continuance for the absence of a witness was properly denied, where it showed no diligence, and where the witness thereafter testified for the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 1120) — Appeal—Harmless Error.
    Admission of testimony of another offense was not reversible error where the bills of exceptions do not contain sufficient other testimony to show error, and it might have been admissible to prove motive.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§-2931-2937; Dee. Dig. § 1120.]
    3. Witnesses (§ 240) — Leading Questions.
    In a prosecution for assault, the question by the state of the prosecuting witness if ,he took hold of the defendant to hold him or to fight him, to which he answered to hold him, was not objectionable as leading.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 845; Dec. Dig. § 240.]
    4. Criminal Law (§ 730) — Trial — Argument of County Attorney — Action of Court.
    In a prosecution for assault, with intent to kill, where the county attorney in his argument stated that the court would charge' on aggravated and simple assault, because there was a squint of testimony to raise such questions, and the court would be compelled to give the charge whether or not any other reasonable man would believe a word of such defenses, was not prejudicial, where the Court gave a special charge instructing the jury not to consider such argument of the county attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dee. Dig. § 730.]
    5. Homicide (§ 96) — Assault with Intent to Kill.
    In a prosecution for assault with intent to kill, the refusal of an instruction that, if the defendant believed that the prosecuting witness had called him a rascal, he would have the right to arm himself with a pistol and demand a retraction or explanation, and in doing so would not forfeit his rights of self-defense, and his acts should not be held against him, and if he did so arm himself and seek out the prosecuting witness who assaulted him, and then he drew his pistol, he would have a right to do so, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 124r-127; Dec. Dig. § 96.]
    6. Homicide (§ 95) — Assault with Intent to Kill — Provocation.
    In a prosecution for assault with intent to kill, it was not error to refuse a charge requested by defendant that if the defendant shot at the prosecuting witness, but that at the time he fired defendant was suffering under excitement caused by the assault of the prosecuting witness, the jury should acquit the defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 123; Dec. Dig. § 95.]
    7. Homicide (§ 257) — Evidence. _
    _ In a prosecution for assault with intent to kill, evidence held to justify a verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 543 — 552; Dec. Dig. § 257.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Pedro Barrego was convicted of assault to kill, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, X

The appellant was indicted and convicted for an assault to kill Antonio Valdez, and his punishment assessed at two years’ confinement in the penitentiary.

1. Appellant made a motion for a continuance on the ground of the absence of Ricardo Garcia, but his motion for continuance shows no diligence. Besides this, the record shows that the witness attended and testified for the defendant on the trial. There was no error in overruling the motion for continuance.

2. Appellant objected to this testimony of Antonio Valdez: “I was an interpreter in a case in justice court. The case was something about a girl.” And by another bill he objected to this testimony of this same witness: “That day in the justice’s office the officer told me to tell him something. Justice Lamar and Mr. Jack Ward, the mayor of Rosebud, told me to tell Pedro if he kept on going to that house it was going to cost him his neck, and they told me to tell him if he insisted on keeping on going there it is liable to cost him his neck, and he says, ‘He know his business,’ and I tell him, ‘Vou acting rascal.’ ” To the first testimony above stated the appellant objected because it was inquiring about another and different offense than the one for which he was on trial, and was incompetent to prove any fact in the case on trial, and could only serve to prejudice the jury against the defendant. The second testimony objected to was that the statement by the justice of the peace and mayor were hearsay statements, and was giving the opinion of the officer to another and different cause, harmful to the defendant and immaterial. Neither of these bills give sufficient of the other testimony in the case or of the questions about which they were asked to show that there was any error whatever in permitting the testimony, and they in no way show that they injured the appellant. We take it from them they may have been admissible for the purpose of showing the motive of the appellant in shooting at the witness Valdez. In no way do they show that they were immaterial or improper testimony in the case.

3. Appellant also objected to a question by the state to said witness Valdez, “If he took hold of the defendant to hold him or to fight him?” to which he answered, “He took hold of him to hold him.” The appellant’s objection to this was that it was leading, and suggested to the witness the answer wanted, and the fact had been fully inquired into on direct examination, and this was a mere rehash of the testimony prompted by a leading' question. We think the question was not a leading question, but, if so, as stated by the bill, it was a mere rehash of whatever had already been testified to by the witness; so that, if it was an error, it was harmless to the appellant, and would be no ground for reversing the case.

4. Appellant also complains of the statement by the county attorney in his argument to the jury to the effect that the court would’ charge on aggravated and simple assault, not because the court believed the facts, but simply because there was a squint of testimony -to raise the question. The court would be compelled to give the charge whether or not any other reasonable man would believe a word of it. The court at the instance of the .appellant gave a special charge to the jury, instructing them not to consider this statement or argument by the county attorney. 'There was no error shown by this bill of exception.

5. The appellant requested the following charge: “If the defendant believed that he had been aggrieved by Antonio Valdez calling him a rascal, he would have the right to .-arm himself with a pistol and seek out Valdez and demand of him a retraction or explanation of the epithets applied to him by -the said Antonio Valdez, and in doing so would not in any manner forfeit his rights of •self-defense, and his acts shall not be held by .you against him, and if you believe from the .evidence that he did so arm himself and seek out the -prosecuting witness, and the prosecuting witness assaulted him, and he then .drew his pistol, he would have a right to do •so, and you will by your verdict acquit him, •or, if you have a reasonable doubt thereof, you will give him the benefit of the doubt, .and acquit him.” This requested charge does not state a correct proposition of law applicable to this case. Besides this, the court in •the main charge and in requested charges by the appellant which were given clearly and •fully covered the questions properly raised by the evidence on this point.

6. The appellant also requested this charge: -“If you believe from the evidence that the •defendant shot at Antonio Valdez, but you believe that at the time he fired the shots the defendant was suffering under excitement caused by the assault of Antonio Val•dez and Ulerno Garcia, if you so believe, you will acquit the defendant of the charge of assault to murder.” What we have said about the special charge refused, just above, -'is applicable to this charge also. The court gave a full charge applicable to the case in •all of its phases and submitted the case of assault with intent to kill, aggravated assault, and simple assault, and charged appropriately on adequate cause and self-defense. In fact, the charge of the court in connection with the special charges requested by appellant, which were given, submitted every phase of the case, even more favorably, if anything, to the defendant than otherwise.

7.There is no error shown by any additional grounds set up in the motion for new trial, not noted above, to justify this court in reversing the case. As stated above, the court gave a full and correct charge on every issue properly raised in the case. The rights of the appellant were fully protected so far as any ground of complaint is shown by this record. The testimony was fully sufficient to justify the verdict found, and there was no error in the lower court overruling the motion for new trial.

The judgment will in all things be affirmed.  