
    RAINEY v. STATE.
    (No. 9985.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied May 26, 1926.)
    1. Criminal law &wkey;»l 111 (3) — Bills of exceptions, showing that argument complained of was invited1 by argument of defendant’s counsel, show no error.
    Bills of exceptions, qualified by court’s statement that prosecuting attorney’s argument complained of was solicited and invited by argument of defendant’s counsel, show .no error.
    2. Criminal law <@=^1169(1) — Admitting evidence that one accompanying defendant tb house where assault occurred was under influence of liquor held not reversible error.
    In trial for assault with intent to murder, permitting state to prove that one accompanying defendant to house where difficulty occurred was under influence of liquor held not reversible error. >
    3. Homicide ¡&wkey; 169 (7) — Testimony as to conversation with defendant at witness’ home immediately before shooting thereat held admissible.
    In trial for assault with intent to murder, testimony as to conversation with defendant at witness’ home immediately before shooting thereat 'held admissible.
    4. Witnesses <&wkey;>240(1).
    Objection to leading and suggestive question to witness by defendant was properly sustained.
    On Motion for Rehearing.
    5. Criminal law '<&wkey;594(4)— Refusal of applications for continuance because of illness of defendant’s wife held not abuse of discretion, in view of chronic nature of illness, and failure to take her deposition.
    Refusal of applications for continuance because of illness of defendant’s wife held not abuse of discretion, where it was undisputed that she suffered from chronic disease, and no effort was made to take her deposition or perpetuate her testimony, though she was at county seat.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Tom Rainey was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, and L. D. Hillyer, of Eastland, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is an assault with intent to murder, and the punishment is four years in the penitentiary.

The appellant complains at the court’s action in overruling his second application for a continuance. This application was for the wife of the appellant, whom he alleged to be a material witness in his behalf, and whom he claims was sick-' and unable to attend court, although present in the town of East-land where court was being held. We think no error is manifested by the record in overruling this application.

The testimony as to her condition was conflicting, but, if full faith and credit be given that offered by appellant and that offered by the state be disregarded, we think it clear that the testimony is such as to indicate that the condition of the appellant's wife is chronic, and there is no showing made excusing appellant for not having taken the deposition of .his wife, and neither is there a sufficient’ showing in the record to indicate any probability of her condition being better at another term of the court. We may observe in passing that the affidavit of the wife as to what her testimony would have been is not found in the record and not attached to the motion for new trial.

By bills of exceptions Nos. 2 and 3, appellant complains at the argument of the prosecuting attorney in the case. The court qualifies these bills by saying that they wer.e solicited and invited by the argument of appellant’s counsel, and in this condition of the record no error is shown.

We think the court was not in,error in permitting the state to prove that one of the parties who came with appellant to the house where the difficulty occurred was under the influence of liquor. It was certainly not of such importance as to justify a reversal of the case.

Neither do we think the court was in error in permitting the witness Turnbow to detail a conversation he had with the appellant at the home of Turnbow where the shooting occurred. This conversation took place immediately before the shooting, and was admissible.

Appellant’s complaint at the court’s action in sustaining the state’s objection to a question asked the-witness Turnbow by him is without merit. The question was leading and suggestive, and, if appellant desired to go into the matter, it was his duty to conform to the rules of evidence in asking the question.

We have examined the other complaints contained in the record, and have reached the conclusion that they are without merit.

Believing that the facts are entirely sufficient to support the verdict, and finding no errors of procedure in the record, the judgment is in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews complaint of the refusal of his applications for continuance. Having same in mind, we have carefully sifted the testimony supporting the proposition that the continuance should have been granted. It was sought because of the absence of appellant’s wife. She had come with him to epurt, and, according to appellant’s contention, had been taken ill after arriving at the county seat. Several physicians, who examined her, testified as to her condition. It seems without dispute that the disease from which she suffered was chronic. All said physicians testified that the condition of nervousness and illness resulting from the prospect of being used as a witness in her husband’s case would likely recur at any future time. She had been suffering from said disease for several years. No effort had been made to take her deposition or perpetuate her testimony. We gather from the testimony of the physicians that one element in the condition of the wife when examined by them grew out of the fact of having made an automobile trip. On this point the sister of appellant’s wife was used as a witness for the state. She said that the wife of appellant came to witness’ house on the morning of the trial; that she was up and walking around and was not complaining of anything more than usual until noon; that up until the time appellant’s wife heard the case was going to trial she was walking around the house, but when she heard that it was going to trial she went off and lay down. Giving consideration to all this testimony, we are' satisfied the learned trial judge did not abuse his discretion in refusing this continuance. The qualifications so put on appellant’s bills of exception Nos. 2 and 3 leave no question of the fact that the argument of the state’s attorney complained of therein was in reply to argument used by appellant's counsel. There is nothing in the proposition that the state proved that a party who was with appellant was intoxicated.

The motion for rehearing will be overruled. 
      
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