
    NICHOLS v. STATE.
    No. 24816.
    Court of Criminal Appeals of Texas.
    June 14, 1950.
    None on appeal for appellant.
    George P. Blackburn, State’s Atty., o'f Austin, for the State.
   DAVIDSON, Judge.

This is a conviction for assault with intent to murder; the punishment, ten years’ confinement in the penitentiary.

According to the State’s testimony, appellant, without justification, shot the injured party with a pistol.

Appellant’s theory of self-defense was rejected by the jury.

The facts warrant the jury’s conclusion of guilt.

The sole question presented for review is the action of the trial court in overruling appellant’s application for a severance to put Leo Nichols, his brother, upon trial first.

It is sufficient to say that the bill of exception shows that the granting of the application would have required a continuance of the case. A severance will not be granted when to do so would operate to continue the case. Art. 651, C.C.P.; Applegate v. State, 115 Tex.Cr.R. 171, 30 S.W.2d 327; Calloway v. State, 137 Tex.Cr.R. 405, 129 S.W.2d 646.

The judgment is affirmed.

Opinion approved by the court.  