Appeal from the County Court of Sacramento County.

The defendant was indicted for an assault with intent to murder Amanda Butler. He was tried and convicted. The verdict was set aside, and a new trial was granted. Before proceeding to the second trial, he moved for a continuance upon an affidavit which, omitting the formal portions, was as follows: “ Frank Ashnauer, after being duly sworn on his oath, says he cannot with safety go to trial in the above-entitled action for the want of the testimony of one Daniel Shultz, who is a competent and material witness for him, and who is a necessary witness for him. That he expects to he able to prove by the said Daniel Shultz that, at the time of the assault charged dn, the indictment herein, he was in his own house, at a distance remote from the place where the assault charged was committed, and at a distance of nearly or quite 500 yards therefrom. That said Daniel Shultz, up to within about four months, was a resident of this county, and resided in the vicinity of the city of Sacramento. That, about four months ago, he left, and went, as he heard, to the city of San Francisco; after that, to some place on the Cosumnes or Mokelumne river, staying only a short time at those places; and after having stayed a short time at the last named place, he left, 'and has gone to some place unknown to this affiant. That he does not know his whereabouts. He thinks that within a reasonable time he can learn the whereabouts of said Shultz, through one John Suverkrup, through whom affiant has known said Shultz to get a letter while living in the vicinity of Sacramento. That Shultz has not been in the county of Sacramento since this cause was set for trial, to the knowledge of this affiant. That as a matter of fact this affiant only learned on day before yesterday that this cause was set for trial. That he only learned the fact on the night of said day. That on the next day he obtained a subpena to be issued for said Shultz. Said subpena has been returned not served. This affidavit is not made for delay merely, but in furtherance of justice. That there is no other witness by whom he can prove the same facts that he expects to prove by said Shultz.” "

The motion was denied. The jury returned a verdict of guilty. He moved for a new trial. The motion was denied, and he appealed from the judgment.

The other facts are stated in the opinion.