Gordan

The appellant was tried in the superior court in and for the county of San Diego, for the crime of assault with a deadly weapon upon L. D. Hauser, with the intent to commit murder, and was convicted of the crime of an assault with a deadly weapon, and was by the judgment of-the court sentenced to imprisonment for the' term of one year in the state prison at San Quentin.

The appeal is from the judgment and from an order denying a new trial.

*571 At the trial, after the prosecution and defense had introduced their testimony, and while the prosecution was introducing testimony in rebuttal, counsel for the defendant asked leave to recall, for further cross-examination, L. D. Hauser, the prosecuting witness, for the purpose of laying a foundation for impeaching said witness, by showing that he had declared, soon after the shooting, that defendant did not fire the pistol to hit him, etc.

Counsel claimed that he only received information of the existence of the declaration on the morning of the day the offer was made.

The court denied the request, and the action is assigned as error.

The Penal Code, section 1093, provides that, after the prosecution and defense have respectively…