Lead Opinion
This record is before us without a statement of facts. Under an indictmеnt charging assault with intent to murder appellant was convictеd of aggravated assault. In the absence of statement of facts appellant’s assignment of error oh the refusal of the continuance can not be intelligently revised. The matters set forth in the motion for new trial are in the same condition. In order to intelligently review those matters the testimony would be neсessary.
As the record is presented the judgment will be affirmed.
Affirmed.
Addendum
on rehearing.
February 24, 1915.
At a former day of the term the judgment herein was affirmed, there being then no statement of facts in the record. It is made tо appear, without fault of defendant, and without his knowledge, that the statement of facts was not forwarded with the transcript. The clerk in the court below certifies it was his fault. He thought the statement of facts had been filed, and counsel also relied uрon that fact, and were not aware of the clerk’s failure to forward the evidence to this court until the opinion was handed down. It is made to appear that the statement of fаcts was properly approved and filed in .the trial cоurt within the time, and should have accompanied the record. The evidence is, therefore, before us, and the case will be considered on its merits.
We deem it unnecessary to discuss mоre than one question, towit: the failure of the court to cоntinue the case. When called for trial the case was postponed on account of the absence of the witness Upchurch. The motion to continue, the certificatе of the doctor, and the evidence on motion for new triаl may be concreted into this statement: That the witness was absent through no fault of his or of the defendant; that he had had an operation performed for appendicitis and was unable on account of that and some complications to attend court. This seems to have been uncontroverted, аnd may be taken as true. So the diligence was sufficient, and the mаteriality, we think, is beyond controversy. The State’s theory was that appellant shot at Sehrimpsher with a view of killing him. The defendant’s theory was that he did not shoot at him, and, among other material facts, he purposed to 'show that the discharge of the gun was accidental; and by some of the testimony, that his wife had taken the gun from him and was undertaking to let dowm the hammer when it was accidentally discharged. The State also contended by its testimony that the shot was fired passing *252 within a foot of where Schrimpsher stood, missing him аnd striking the opposite wall of the house. Appellant purposed to show by testimony that that was not true; that the ball did not pаss within eight or ten or perhaps more feet of Schrimpsher. All this was very important testimony to the defendant, and had the jury believеd this testimony tiey certainly would have acquitted him. If appellant shot at Schrimpsher under the contention of the State, he" would have been guilty of an assault. If the matter occurred as he purposed to prove by his absent witnesses, he did not shoot at him and, therefore, not guilty of an assault. The issues were sharp and incisive. Appellant was entitled to have this testimony.
The rehearing is granted, and the judgment is now reversed and the cause remanded.
Reversed and remanded.