
    GRAYSON v. STATE.
    (No. 10513.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.
    Rehearing Withdrawn Jan. 19, 1927.)
    1. Criminal law @=3598(7) — Diligence held not presented by application for continuance for witnesses.
    Application for continuance,, merely stating that, relying on deputy sheriff’s statements as to when defendant’s case would be called for trial, his attorney made no application for process for witnesses, presents no diligence.
    2. Criminal 'law <@=>l 111 (3) — In view of qualification by judge of bill of exceptions, claiming trial in court without transfer, error held not presented. s
    No eryor is presented by bill of exceptions to trial in court other than that to which indictment was returned without transfer therefrom; judge’s qualification calling attention to fact that there appears a regular order transferring the case.
    3. Criminal law <@=>1091 (5)—'Whether refusal to allow witness to testify to certain matter was error should be determinable from bill of exceptions.
    Bill of exceptions to refusal to allow witness to testify to certain matter is insufficient, nothing appearing therein from which it can be determined whether such action was error.
    4. Criminal law <§=>730(8)—District attorney’s statement on voir dire examination as to burden of proof on suspended sentence held harmless, in view of court’s charge.
    In view of court’s charge properly presenting the issue of burden of proof, defendant was not materially injured by statement of district attorney on vojr dire examination that burden of proof on suspended sentence shifted to defendant.
    5. Criminal law <§=>7211/2(I)— District attorney’s reference to defendant’s failure to put on stand witness subpoenaed and present held not error.
    There was no error in permitting district attorney to rqfer to failure of defendant to put on the stand witness whom he had subpoenaed and who was present in court.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    Moses Grayson, alias Coots, was convicted of assault to murder, and appeals.
    Affirmed.
    W. E. Pinkston, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in the criminal district court of Dallas county of assault to murder; punishment, five years in the penitentiary.

There are six bills of exception in the record, each of which has been carefully examined. Bill No. 1 complains of the refusal of a continuance. The application for continuance is wholly devoid of any sufficient showing of diligence. Appellant sets forth that, relying upon the statements of a deputy sheriff as to when his case would be called for trial, his attorney made no application for process for witnesses. This needs no discussion to make plain the fact that it presents no diligence.

Bill No. 2 presents appellant’s objection in open court to being tried in the criminal district court of Dallas county, apparently upon the ground that his case had not been transferred from criminal district court No. 2, into which the indictment was returned, to the criminal district court. The qualification of the learned trial judge to this bill calls attention to the fact that there appears a regular order transferring the case. No error is presented.

Bill No. 3 presents complaint of the refusal of the court to permit one Fitzgerald to “attempt to testify he had seen letters written by Zepher Grayson to Mose Grayson.” The state’s objection to this was sustained, and nothing appears in the bill from which this court can determine that the action of the court in this regard was erroneous.

Bill No. 4 is in substance the same as bill No. 2 above referred to, and, for the reasons stated in discussing bill No. 2, this presents no error.

Bill No. 5 presents complaint of a statement made by the assistant district attorney in the voir dire examination of jurors to the effect that the burden of proof in regard to suspended sentence shifts to the defendant who must prove himself entitled thereto. The charge of the court to the jury in this case properly presented the issue of the burden of proof. We perceive nothing in the statement made to the jury on their voir dire capable of material injury to the accused.

Bill No. 6 complains of the fact that the district attorney was permitted to refer to the failure of the defendant to put on the stand a witness whom he had subpoenaed and who was present in court. We perceive no error in this.

The facts seem ampié to support the conclusion of guilt.

Being unable to agree with any of the contentions of appellant, the judgment will be affirmed.

On Application to Withdraw Motion for Rehearing.

Appellant has filed here his sworn request to withdraw his motion for rehearing. In accordance with said request, the motion for rehearing will be withdrawn. 
      @=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes-
     
      <gs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     