¶1 REHEARING.
¶2 December 20, 1922.
¶3 At a former day of this term the appeal herein was dismissed because of an insufficient recognizance. This defect has now been remedied and the case will be considered by us on its merits.
¶4 Appellant was convicted in the District Court of Harrison County of assault with intent to murder, and his punishment fixed at five years in the penitentiary.
¶5 We need not discuss or state at length the facts. They sufficiently show that following a transaction apparently involving appellant in the handling of an bottle of some kind of liquor at Texarkana, which was witnessed or discovered by Mitchell, the alleged injured party, appellant urged Mitchell not to turn him in or report on him to the officers, but he not agreeing to do so, Mitchell, who was steward of a dinmg car, was pushed by appellant off a moving train at night, the train then moving at a rate of forty-five miles per hour, from which Mitchell suffered severe injuries.
¶6 A continuance was sought by appellant. From the record it appears that he was arrested on May 29th, the' day following the alleged assault; was indicted on June 13th and tried on July 7th following: The absent witnesses were three waiters in said dining car. They resided in St. Louis, Missouri. No effort was made to obtain their . depositions, and the only showing of diligence appearing in the record is the issuance of a subpoena on July 1st to Harrison County, Texas, for said witnesses. The train to which the dining car in question was attached, operated between St. Louis, Missouri, and San Antonio, Texas. Manifestly the facts above stated negative the proposition of diligence on the part of appellant. No affidavits of any of said witnesses were attached to the motion for new trial.
¶7 While the jury were waiting, for the court to prepare his charge after the close of the taking of testimony, a man came into the court room with a rope. Affidavits were appended to the motion for new trial apparently seeking to show that some one tied a hangman’s *268 noose in said rope and that it was shaken at appellant and a remark made to one of appellant’s attorneys that they were going to hang his negro. This matter was fully investigated by the trial court upon the presentation of said motion for new trial. The man who brought the rope into the courtroom testified that he went to see the sheriff about moving a cow and that when he got into the courtroom he dropped a small rope which he had into the lap of a man sitting in the rear of the courtroom and went on up to talk to the officer. He further stated that he did not see the appellant and did not know who was on trial, and had no interest whatever in the matter and made no demonstration. The man in whose lap the rope was dropped testified to that fact and that he took the rope up and tied it in various knots but denied making any demonstration of any kind or seeing anyone else do anything of that sort. It is further shown that the place where the rope was had in the courtroom was behind the jury and that they could not see it without turning. However, the State introduced two jurors who said they saw Mr. Blackburn come into the courtroom with a rope but paid no attention to it, and the matter was not referred to by any of the jurors. The two men who made the affidavits offered by appellant, also testified and stated that what they saw and heard was said and done jokingly. The refusal of a new trial, based on the ground of any hurtful or harmful demonstration connected with said rope, was correct.
¶8 It was asserted that no evidence showed malice and that it was error to submit the law of an assault with malice aforethought. We find nothing in the authorities cited applicable to such proposition upon a case such as the one appearing in this record. If appellant deliberately pushed Mitchell off a train moving forty-five miles an hour, argument would not be necessary to demonstrate the proposition that such action would show a heart regardless of social duty and fatally bent on mischief.
¶9 The trial court sustained appellant’s objection to a question propounded by the' State to appellant while on the witness stand regarding what he had told the grand jury. The objection was based on the fact that at the time appellant was before the grand jury he was under arrest. The matter inquired about pertained to appellant’s testimony regarding the fact that Mitchell and a man and woman were seen by him together on the vestibule of the car about the time Mitchell claims to have been pushed off. The mere asking of the question which was not answered under the facts stated, constituted no material error.
¶10 The prosecuting attorney in his argument referred to appellant as a confessed bootlegger. Objection was made to this but no instruction asking that it be not regarded by the jury, was presented. ' Mitchell had testified that he saw appellant on the vestibule of a car with another negro and that he went out there and took *269 a bottle from the hands of the said other negro, looked at it and handed it back and then told appellant that he was liable to get in the penitentiary and that this was bad business. Subsequently appellant came to Mitchell twice and wanted him to not report him to the officers or turn him in, and told him that the bottle he had discovered in said transaction was Virginia Dare. The tendency of the evidence was to show illicit handling of intoxicating liquor on the part of appel- ' lant, and his subsequent requests to Mr. Mitchell not to report him or turn him in might be construed as confessions on his part of guilt in such transaction. We think at most the statement of the prosecuting attorney was in the nature of a rather strong deduction from the testimony, but we do not deem it to bring the case within the line of authorities holding that the statement of a fact not supported by any evidence and which is of such nature as to put before the jury a fact apparently hurtful to the accused, would be reversible.
¶11 Finding no error in the record, the judgment of the trial court will be affirmed.
¶12 Affirmed.