
    RUSHING v. STATE.
    (Court of Criminal Appeals of Texas.
    May 10, 1911.)
    1. Geiminal Law (§ 596) — Continuance — Absence oe Witness — Nature oe Testimony.
    It was error to deny a first application for continuance for the absence of two witnesses for accused, duly subpoenaed, whose testimony, while impeaching in character, would have also tended to corroborate defendant’s version of the difficulty.
    [Ed. Note. — For other cases, see Criminal Law, ■Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    2. Homicide (§ 169) — Evidence—Relevancy —Thee ats.
    Where an alleged assault with intent to murder was alleged to have resulted from, a difficulty concerning defendant’s conduct toward a ■woman three weeks prior thereto, and the state was permitted to cross-examine defendant concerning such conduct, a conversation had between defendant and another, in which it was alleged that defendant stated that he had been mistreated by the woman, and that he intended to “swing her so hard as to try to jerk her damn head off,” was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 169.]
    3. CRIMINAL Law (§ 719) — Trial—Argument oe Counsel.
    Defendant having denied making a statement to C. as claimed by the state, C. was not placed on the stand, and defendant’s counsel, having called attention to the fact that he was not made a witness, insisted that defendant’s denial of the statement must be true. Held, that it was error to permit a district attorney, in reply, to state that C. was present, and that he had no doubt counsel for defendant was fully advised as to what his testimony would be, and that he would give defendant 15 minutes in which to place C. on the stand, and, if he did not testify in line with the questions asked defendant when he was on the stand, the attorney would join in a request for acquittal.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 719.]
    Appeal from District Court, Burnet County ; Clarence Martin, Judge.
    Will Rushing was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Ike D. White and Ben L. King, for appellant. C. 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
    
   HARPER, J.

Appellant was charged by indictment with making an assault with intent to murder on Wesley Cauley, and upon a trial he was convicted and sentenced to two years’ confinement in the penitentiary.

Appellant filed a motion fqr a continuance on account of the absence of two witnesses, Ob Livingstone and Oscar Bradshaw; the process showing that both had been duly served. The testimony alleged that it was expected to be proven by Ob Livingstone was in the nature of impeaching testimony; but it is a statement alleged to have been made by the injured party, Cauley, as well as by the witness Heines, which would, if true, corroborate defendant’s version of the difficulty. By the other witness, Bradshaw, it is stated it is expected to prove that prosecuting witness had used language in regard to defendant showing ill will and intention and expectation to have trouble in the future. While an application for a continuance will not be granted merely to obtain impeaching witnesses, yet after reading the record in this case, taking into consideration what it was expected to be proven by Bradshaw and the further fact that it appears that Livingstone was sick and unable to attend court, this being the first application, we are of the opinion the continuance should have been granted.

The testimony shows that appellant and the injured party were going along a road at night, appellant overtaking the prosecuting witness. As to what took place at that time there is a sharp conflict in the testimony. However, the jury has found with the contention of the state; hut the testimony is meager which would show that the assault amounted to the grade of an assault to murder. While the defendant was on the stand, the state, on cross-examination, was permitted to ask the defendant about his conduct towards a young lady some three weeks prior to the difficulty. The differences between appellant and prosecuting witness grew out of this. It was proper to be shown all that was said between them on that occasion, as tending to show animosity and motive, yet we do not think that any conversation had between appellant and Will Gro-means, in which it is alleged defendant said to Cromeans that he had been mistreated by the young lady, and that he (defendant) intended to “swing her so hard as to try to ■jerk her damn head off,” was admissible in evidence, as it shed no light on the difficulty between defendant and the prosecuting witness.

When defendant denied making such statement to Cromeans, Cromeans was not placed on the stand. Defendant’s counsel, in presenting the case, called attention to the fact that Cromeans had not been used as a witness, and insisted that defendant’s denial of such statement must be true. In the closing argument for the state, the district attorney was permitted to testify or state: “Bill Cromeans is here in the house, and no doubt counsel for the defendant are as fully advised as to what his testimony would be as counsel for the state. I will say this to counsel for defendant: I will give them 15 minutes time, and they can place Cromeans on the stand, and, if he does not testify in line with the questions asked the defendant when he was on the stand, I will join in a request to acquit him.” As stated above, this testimony was not admissible for any ■purpose in this case, and such remarks were highly improper. Not only did defendant at the time object, and save his bill, but he also asked a special charge be given instructing the jury not to consider such remarks, which was refused.

The evidence in this case discloses that the young .men had been friends up to the time the appellant perhaps mistreated the young lady. Words passed, but neither appears to have become highly incensed; but -a coolness sprung up between them. This went on for some three weeks, when the difficulty took place, and the appellant cut the .prosecuting witness quite severely with a .pocket • knife. As hereinbefore stated, the evidence is meager to show the specific intent to kill, essential to assault to murder, and as it is impossible to'know the effect of the evidence showing improper treatment of a young lady, and the effect of the remarks of the prosecuting officer in regard to this matter, in causing the jury to find the defendant guilty of assault to murder, and not an aggravated assault, for the errors pointed out, the judgment is reversed, and the cause is remanded.  