#### DAIGLE v. STATE.

(No. 12149.)

Court of Criminal Appeals of Texas.

April 3, 1929.

Rehearing Denied May 8, 1929.

Robt. A. Shivers, of Pont Arthur, for appellant.

A. A. Dawson, State’s Atty., of Austin, for the State.

MARTIN, J.

Offense, aggravated assault *%*penalty, 90 days in the county jail.

In a difficulty at a dance, prosecuting witness was shot by appellant. Under an indictment for assault to murder, appellant was convicted of aggravated assault.

It is claimed that the refusal of the count to give the following special charge was error: ‘‘You are ihstrncted that, if you find from the evidence that B. Sedatal caught hold of the defendant, gave him a shake, and tore his coat, then in that event the defendant had a right to demand an explanation, and also-to demand that Sedatal pay for the damage done to his coat, if any.”

There was evidence to show that prosecuting witness had *torn*appellant’s *coat*at the dance, and that appellant called him out and asked him about it, and demanded pay for it. The court gave appellant in his charge a perfect right of-self-defense, without limiting it in any manner, and without charging on provoking the difficulty. Under these circumstances,- it was not error to refuse to give the charge asked by appellant. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972, Ford v. State, 77 Tex. Cr. R. 252, 177 S. W. 1176, Branch’s P. C. § 1950, Newman et al. v. State (Tex. Cr. App.) 69 S. W. 519, and other cases relied on by appellant, show to have been cases where the right of self-defense was limited by a charge on provoking the difficulty.

It is a sufficient answer to appellant’s complaint of the court’s action in refusing other charges asked that such charges were fully covered in the court’s main charge.

Complaint is made in hill of exception No. *624 of the action of the court in permitting the prosecuting attorney to question appellant concerning the contents of an application for a continuance filed by him. The action of the court was improper. Hardin v. State, 40 Tex. Cr. R. 208, 49 S. W. 607. The bill, however, shows that no answer of appellant was elicited that could have injured him, and we are of the opinion that the matter presents no such error as would justify a reversal.

Einding no reversible errors in the record, the judgment is affirmed. ■

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The recitals in bill of exceptions No. 4 are as follows: “ * * ***And the court permitted the state’s attorney, Hon. Ered A. White, over the objection of the defendant, to go into detail and force the defendant to tell before the jury that he had understood that the alleged injured party, Sedatal, was claiming that he, the defendant, had insulted Sedatal’s wife, and that, in addition to that, that he, the defendant, was accused of insulting another woman, whose name is not mentioned.”

In the light of the statement of facts, the bill is not regarded as showing error, or as exhibiting a transaction in conflict with the rule stated in Hardin’s Case, 40 Tex. Cr. R. 208, 49 S. W. 607. The state’s witness claimed that, while at a dance, he was invited by the appellant to go out for a conversation, and that upon doing so he was shot by the appellant without provocation. The appellant, in his testimony, claimed that, before leaving the dance, he was assaulted and his coat torn by the injured party; that after going out of the building he complained of this conduct, and demanded payment for the injury to his coat; that he was assaulted, and, believing his life in danger, fired the shots which caused the injury.

State’s counsel, in cross-examination, caused the appellant to give an account of the various things that happened at the dance antecedent to the shooting, and it was in that cross-examination, which appears to have offended against no rule of practice, that it was developed that Sedatal, the injured party, was drunk; that he was slapped by a woman named Hebert; that McGee was present in company with the appellant, but he could not remember whether he was present at the time that the tearing of the coat took place; that for the purpose of getting his wife to go home he started to enter a room, and was told that Mrs. Sedatal was in there drunk, and that he could enter if he desired; that he went in to get his wife; that 'Mrs. Sedatal became angry because he entered the room, and said that he had insulted her. The inquiry with reference to the continuance, which was initiated by the state, appears to have been addressed to the contradiction of the appellant’s testimony upon the trial, and that in the motion for a continuance touching the presence of McGee. Such an inquiry was offensive to no rule of evidence. On the contrary, it was permissible in cross-examination to make use of the averments in the application for a continuance for the purpose of impeachment upon material matters. Under-hill’s Orim. Ev. (Sd Ed.) § 381.

The bill of exceptions is meager, and the part quoted-is more in the nature of a conclusion than details. To ascertain the setting, and determine the probable effect of the matters complained of, an examination of the statement of facts is permissible. Plummer v. State, 86 Tex. Cr. R. 493, 218 S. W. 499; Martin v. State, 107 Tex. Cr. R. 162, 295 S. W. 1098; Elkins v. State, 101 Tex. Cr. R. 377, 276 S. W. 291.

The motion is overruled.