¶1Appellant, indicted as "Will Ezell, was convicted of assault with intent to kill, and sentenced to one year in the penitentiary, and he has appealed.
¶2The first question presented is the alleged error of the court in overruling a motion for a continuance. A showing was made by the State that the witness desired was a nonresident of the State, and the motion failed to indicate ini what manner defendant would be enabled to get her testimony, and did not say that the deposition would be taken, nor explain why it had not been taken, and did not hold forth any reason to believe that the witness would be brought back "to the State to testify if the trial was postponed. The court properly overruled the motion.
¶3Subsequently, after eleven of the jurors had been impaneled, the defendant attempted to reopen this motion, to show that the witness was temporarily absent from the State, and would .return. The trial court refused to permit this question to be reopened at that time, and this court is unable to see that it was an abuse of discretion.
¶4The next alleged error discussed is as to part of the oral charge of -the court. But the part now objected to was not . objected to when given, and no exceptions taken to it, or any of the instruction, and no assignment of it made in the motion for new trial, and of course it is not before this court now.
¶5Error is alleged in the refusal of the court to give the following instruction: “The court instructs the jury that, in determining the guilt or innocence of the defendant, you will take into consideration all the circumstances as they existed at the time defendant is alleged to have shot Steve Britney.” It is'as difficult to see why the court .refused to give this instruction as it is to see why appellant desired it. Men of average intelligence — certainly such men as are selected on juries— know that in considering a case they must consider all the circumstances; and in several places in the charge the court makes it clear to the jury that they are to consider all the evidence and to consider it as a whole. Eike any other established fundamental proposition, it may well have been given to the jury; but a failure to have had the benefit of it could not have had any' effect upon the verdict.
¶6The only other error alleged by the appellant was this: “The defendant here .offered to produce Steve 'Britney to make profert, to the end that the jury might see the relative size of the defendant and Steve Britney, but was refused 'by the court, the court remarking that it did not suppose any body wanted to see Steve Britney; to which the defendant excepted.” If upon any one, this remark reflected upon Steve Britney, the prosecuting witness, and not upon the defendant. The defendant could have adduced testimony as to the relative size of himself and Britney, -yyithout making profert of the two men. These are matters in the conduct of trials that are left to the discretion of the trial judge; and, unless there is some arbitrary abuse of that discretion, there will be no reversal. The objection seems to be chiefly to the remark of the judge as having a tendency to belittle the defense offered, and to prejudice the jury against it; but the court is unable to see reversible error in it.
¶7Taking the case as a whole, it appears that the defendant had a fair and impartial trial, and the conviction seems proper if the evidence on the part of the State is true, and the jury said it was.
¶8Judgment is affirmed.