
    DAVIS v. STATE.
    (No. 7862.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.)
    1. Criminal law <&wkey;598(7) — Denial of continuance beoause of absent witness held not error in absence of process.
    Denial of continuance because of the absence of a witness 'held not error, where trial was not had for more than three months after indictment and where no process had been issued or served upon the witness, reliance being had upon her promise to attend.
    2. Criminal law <@=>1120(3) — Bill of exceptions to exclusion of questions held not to present error in absence of showing as to answer expected.
    Bill of exceptions complaining of the refusal to permit the asking of a question of a witness held not to present error in the absence of any showing as to what the answer would • have been, particularly where the answer would apparently have been a mere opinion of the witness and otherwise irrelevant.
    3. Criminal law <&wkey;364(6)— Statements of accused after arrest and within 15 minutes after offense Held admissible as part of res-gestae.
    In a prosecution for assault with intent to murder, testimony that defendant stated to the officer who arrested him within 15 minutes after the alleged assault, and while he was still excited, that he had found a letter to his wife,, which so enraged him that he did not know what he was doing, held admissible as part of the res gestae.
    4. Homicide <&wkey;>l66(l) — Defendant’s conduct when first wife proved unfaithful held inadmissible in prosecution for assault on second wife for alleged infidelity.
    In a prosecution for assault on defendant’s wife with intent to murder, alleged to have been-committed after discovery of a' letter to her indicating unfaithfulness, evidence that defendant had divorced rather than assaulted his first wife for like infidelity held irrelevant and inadmissible.
    <2^>For other cases see same topic and KEY-NUMBER in all Key* Numbered Digests and Indexes
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Harrison Davis was convicted of assault with intent to murder, and appeals.
    Reversed and remanded.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   DATTIMORE, ,T.

Appellant was convicted in the district court of assault with intent to murder, and his punishment fixed at two years in the penitentiary.

Appellant was charged with an assault to-murder his wife, both parties being negroes. That he shot at her with a pistol and cut her with a knife is undisputed. The parties had been living apart, but appellant’s theory was that the separation was caused by no disagreement and that he expected shortly to be able to provide a home and support for his wife. He was visiting at the place where she was staying at the time of the-assault and claimed to have picked up an unsigned letter addressed to his wife and-which said: “I didn’t think, you would treat me that way and that he enjoyed being with her that night, and you act like-you want to quit me.” Appellant’s wife was not present when he claimed to have found this letter, but came in shortly, and he said that he asked her about the letter and she-denied it, and appellant testified that he then shot her through passion and that he cut her-for the same reason. Prosecutrix for the state swore that appellant came to where she-was sitting that morning and wanted her to come back and live with him, and when she-refused he got mad and attacked her.

The application for continuance was correctly overruled. There was no sort of diligence averred. It was set up that witness promised to he present, but no process of any kind had been issued for her or served upon her. The indictment was returned September, 1922, and the trial had December, 1922. No excuse or sufficient reason appears for failure to issue process.

The complaint that appellant was not allowed to ask a witness whether prosecutrix heard him make statements — as set out in appellant’s second bill of exceptions — cannot be considered, because same does not set out what the witness would have answered in response to the objectionable question, and further because the bill sets out no facts which would have relieved the answer, if affirmative, of being a mere opinion of the witness dependent upon a state of facts which does not appear. Nor are we able to see the relevance of any answer. Prosecutrix was badly cut in the throat, and.what was being said in her -presence by others, not parties to the transaction about a letter, would not seem admissible as binding her or affecting the guilt of the accused.

Bill of exceptions No. 3-A complains that appellant “asked a witness if he [meaning the defendant] made a statement to him that caused him to go anywhere to look for something.” The state’s objection being sustained, and no answer expected of the witness being set out, we are at a loss. The question presents nothing. The bill presents no error.

As we understand bill of exceptions No. 3-B, it reflects the court’s refusal to allow the defense to prove a statement made by the accused to the officer who arrested him within 15 minutes after the alleged assault. The officer testified that at the time of making this statement appellant was excited, nervous, and trembling, and appeared to be shaking and very much agitated. It appears from the bill of exceptions that he told the officer of finding the letter testified to by him, and also told the officer that it made him so mad he did not know what he was doing. We think this testimony was admissible as res gestee. Craig v. State, 30 Tex. App. 621, 18 S. W. 297; Craven v. State, 49 Tex. Cr. R. 78, 90 S. W. 311, 122 Am. St. Rep. 799; Douglass v. State, 54 Tex. Cr. R. 639, 114 S. W. 808; Garcia v. State, 70 Tex. Cr. R. 485, 156 S. W. 942; Lindsey v. State, 35 Tex. Cr. R. 164, 32 S. W. 768; Deneaner v. State, 58 Tex. Cr. R. 624, 127 S. W. 201.

Appellant while a witness was asked, “You didn’t do your first wife this way when she was untrue to you; you divorced her, didn’t you?” The fact that appellant did not shoot or cut his first wife sheds no light on any issue involved in this case; nor would the fact that he divorced his first wife for infidelity seem to ai<j in solving the question as to his motive or mental condition when he shot and cut prosecutrix in this case. These matters were material, and we are unable to say that the errors did not affect the fairness and impartiality of the trial.

For the errors mentioned the judgment will be reversed and the cause remanded.  