
    Janie Davis v. The State.
    No. 3500.
    Decided April 17, 1907.
    1. —Assault With Intent to Murder—Postponement—Continuance—Affidavit “by Attorney.
    Where upon trial of assault with intent to murder the motion for postponement was sworn to by one of defendant’s counsel and not by defendant himself, the same was fatally defective, as the affidavit must be made by defendant.
    2. —Same—Continuance—Postponement.
    Where upon trial for assault with intent to murder the testimony of the absent witness was not material in the light of the record the motion was properly overruled.
    Appeal from the District Court of Tarrant. Tried below before the Hon. Mike E. Smith.
    Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      Buck, Cummings, Boyle <& Bouldin, for appellant.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   BROOKS, Judge.

This conviction was for assault with intent to murder, the punishment assessed being two years confinement in the penitentiary. Appellant filed motion in this case for postponement, which was sworn to by one of appellant’s counsel and not by the appellant. The statute requires a motion for postponement and continuance to be sworn to by appellant. Furthermore, the testimony sought from said absent witness is not material in the light of this record, since the uncontradicted record before us shows that after a colloquy and quarrel between prosecuting witness and appellant, appellant went out of the saloon and returned in a few minutes with a pistol, stating at the time she left that she would return in a few moments. The record shows that prosecuting witness had a knife, but there is no semblance of testimony that prosecuting witness had attempted to use a knife, therefore, the fact that one was found in the saloon after the difficulty, would not be material testimony, even if we could consider the motion for postponement.

Finding no error in the record, the judgment is affirmed.

Affirmed.  