delivered the opinion of the court.

The motion for continuance should have been granted, or the court should have postponed the cause to another day of -the term if it saw proper. The docket is called for trial or continuance, and it is not incumbent on him who makes the application to ask postponement to a future day of the same term. The court may do so on the application for continuance if the condition of the public business or the situation in that particular ease makes it advisable.

The testimony of the absent witnesses was of great importance to the accused. The error is not cured because accused himself admitted that, after Bell- had shot him in the face and head, he fired his pistol at Bell while Bell was running. He may, perhaps, be entitled in this case to the benefit before the jury of the principle that, under some circumstances, one may anticipate his antagonist if it appear that his flight was for vantage. To enable them to judge of this, the testimony of the absent witnesses was material, and defendant was entitled to *336their presence, because he had no opportunity for compulsory process to secure it. Code 1892, § 1425.

The sixth instruction was erroneous on its face as matter of law, and it was bad practice to permit its use as it was used. The indictment has two counts in one: First, a perfect charge of an assault with intent to kill and murder; and, second, a perfect charge of assault and battery with that intent. There was no evidence whatever of any battery. On the contrary, it is clear that defendant never hit his man, but it was he who was actually shot. The instruction told the jury that, “even though the indictment charges that defendant did strike and. wound and maim Simon Bell, yet, if the evidence fails to disclose that Simon was shot or wounded, this makes no difference whatever; if the jury believe from the evidence beyond reasonable doubt that defendant shot at him, Simon, with intent to kill Simon when he was not in real or apparent danger of losing his life, or of great bodily harm at the hands of Simon, then the defendant is guilty, and this is true even though he failed to hit him with either of his shots.” The verdict w'as, “Guilty as charged in the indictment;” thus, in obedience to the charge, convicting of the battery as well as of the assault. In 1 Whart. Or. Law (10th ed.), sec. 640, it is said: “But there can be no conviction of a battery unless a battery be averred or implied.” Every battery implies an assault, of course, because there can be no battery without an assault; but there may be an assault without any battery. The jury may convict of an assault under an indictment for assault and battery, but may not convict of assault and battery with no evidence of battery. An assault is simply an attempt to hurt, with the power to hurt, while the battery, is where the hurt is done pursuant to the assault, and a defendant should not be convicted of what he has clearly not done. Our own statute (Oode 1892, § 967) draws the distinction. It provides: “Every person who shall be convicted of . . . any assault or assault and battery,” etc., shall be punished, providing the same punishment. The *337record history of this instruction shows that it was had of the court by counsel for the state during the argument for the defendant, whose counsel were in entire ignorance of it, and that it was for the first time produced by the counsel for the state in his closing argument to the jury, telling them that he had gotten the instruction from the court to answer the argument of counsel fox the defense, who immediately objected and excepted to this practice, the court remaining silent. It is true that the state’s attorney then said: “Counsel may answer the instruction now.” This proceeding was not good practice, and not cured by the remark of the state’s attorney, action on which might have required the reshaping of the whole argument. The court may grant instructions at any time before the jury retires, but not secretly. Other counsel interested should know of it, even though they have to be stopped in argument. This is the proper practice; though, in a case where the charge was clearly right, and not so adroitly prepared as to possibly mislead the jury, we would not reverse for a deviation from it. But we would reverse for this alone in the case before us. We write in full view of Wood v. State, 64 Miss., 775 (2 South. Rep., 247), and do not modify or overrule that case. We are not sufficiently informed of the exact situation in that case to do either. We feel sure, however, that the correct practice, under our system, is for the court to pass on all instructions asked on both sides before the argument to the jury begins. This rule should not be deviated from except on rare and emergent occasions in the discretion of the court, and even then with opportunity to the other side to prepare and request any counter charge applicable to its view of the facts; otherwise great injustice might occur to the defendant in favor of the party with the closing argument. TTnderholds and blows beneath the belt should never characterize trials, especially 'trials involving life or liberty. A court should so deport itself as that no juror or bystander can surmise its view of the facts. It is an unbiased jury alone which should pass on the facts; and this, on the theory of the *338law in Mississippi, is designed for the protection of innocence, which is presumed of all men until disproved in the legal mode on a fair and impartial administration of equal and exact justice.

Reversed and remanded.